October 6 2008

Family Unfriendly Family and Medical Leave

Often, the worst policies come packaged in the most appealing labels.  So it is with the "Family and Medical Leave Act."  Family and medical leave is good.  But government-mandated family and medical leave is bad for families and everyone else.

Anyone who gets sick or has a child understandably likes being able to take leave time.  Most employers do their best to accommodate workers attempting to balance work and family.  But there is no "right" benefit for every employee at every company across America.

The Family and Medical Leave Act of 1993 (FMLA) requires large companies to provide unpaid leave to workers.  Today, many Democrats, backed by organized labor, want to apply the law to small businesses and even mandate paid leave.

Government cannot add to employment terms; it can only redistribute them.  Unfortunately, companies do not have unlimited resources.  Firms tailor compensation based upon employee productivity.

Increase one part of the compensation package and there is less money available for other benefits.  If Congress forces firms to spend more money on family leave, there will be less money for salaries and health insurance.

Federal mandates also redistribute benefits among employees.  Single employees and married employees without children lose out when employers are forced to shift compensation dollars to family leave.

Even unpaid leave hurts those without children, since they have to pick up the slack when others take time off:  reassigning work is how two-thirds of companies deal with employees who take FMLA leave.

FMLA mandates up to 12 weeks of unpaid leave within every 12 month period for purposes of personal or family illness or child birth or adoption.  The U.S. Department of Labor reports that most employers do their best to comply with the law.  But, there is no such thing as a free lunch.

Companies also tell the Labor Department that the law causes "job disruptions" and "adverse effects on the workforce."  Unfortunately, reports the Labor Department, "employees take frequent, unscheduled, intermittent leave from work with little or no advance notice to the employer."

Verizon Communications, named one of the 100 best companies for working mothers, found that the number of absent days per employee tripled after FMLA's passage.

Indeed, 42 percent of human resource professionals say that the potential for abuse causes "extreme difficulty" in administering the law.   Although most employees are honest, a sizable number have misused the law.

Many medical and family leave days coincidentally occur on Monday and Friday.  Maxing out intermittent family leave-as many as 60 out of 260 normal work days-allows calculating employees to receive full-time benefits (such as health insurance) for a part-time schedule.

Some business owners refer to the FMLA as the "Far More Leave than Anyone Intended Act" and the "Slacker's Protection Act."  For this reason, firms strategize to limit "intermittent leave abuse" and a growing number of them even use surveillance and private investigators to monitor employees.

Nearly half of Americans said they could cite at least one time when they suspected a co-worker "who claimed to be taking time off for family or medical reasons was really using it for something else."

One-third said intermittent leave-taking by fellow employees made them less productive.  Some workers who tire of carrying an extra burden eventually take advantage of the law in the same way.

One problem is that the Department of Labor changed the definition of "serious health condition," from what lawmakers intended.  Originally, the Department of Labor said that conditions such as a cold or upset stomach were not "serious."

But then Labor bureaucrats decided that if such conditions lasted three days-hardly unusual for someone who gets the flu, for instance-then the law applies.

Regulations also require that federally-mandated leave must be accounted for based on the shortest leave increment used by the company, creating a substantial administrative burden.

Employees also have up to two days after taking leave to inform their employers about their problem, making it nearly impossible for employers to plan for absences, enforce attendance, and properly account for leave.

Ironically, this tendency towards abuse has deterred companies from expanding their own leave programs.  According to the Society for Human Resource Management:  "FMLA misapplications have penalized employers with the most generous leave policies and had a chilling effect on the expansion of paid leave."

Mandatory unpaid leave is problem enough.  Far worse would be mandatory paid leave.  Clearly these more generous terms would encourage more workers to use, and abuse, the benefit.  Mandated paid leave would also hurt employees unlikely to take advantage of family leave.

Benefits already make up nearly one-third of compensation packages.  Paid family leave would punish workers who prefer higher wages or other fringe benefits.  Paid leave also would discourage companies from hiring women of child-bearing age.

Since women are more likely to use family leave, government mandated leave increases the cost of hiring women.  The resulting discrimination might be unstated, but no less real.

FMLA supporters complain that the U.S. is one of the few countries not to mandate paid family leave.  But more than eighty percent of American workers receive paid leave in some form.

Moreover, in today's more competitive world, companies increasingly emphasize work flexibility.  Rather than add to business burdens, Congress should relax federal controls and encourage companies to craft more creative benefit packages that better meet the needs of their workers.  A freer workplace would benefit individual workers and the overall economy.

Michelle D. Bernard is president and CEO of the Independent Women's Forum and Independent Women's Voice and an MSNBC political analyst.

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