Letter to the U.S. Representative Judy Biggert Family and Medical Leave Clarification Act (HR 35)

Dear Representative Biggert:

On behalf of the U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector and region, I am writing to express our appreciation and support for your introduction of H.R. 35, the Family and Medical Leave Clarification Act.

The Family and Medical Leave Act of 1993 (FMLA) was intended to provide leave for emergencies or significant family events such as the birth or adoption of a child, the serious medical condition of an employee, and the care of a child or spouse suffering from a serious medical condition. However, as you so compellingly demonstrated in your remarks on introduction of the Family and Medical Leave Clarification Act, the FMLA has been misapplied because of vague, expansive and confusing implementing regulations of the Department of Labor (DOL). As a result, employers are compelled to ask deeply personal and invasive questions of employees seeking leave; employers are saddled with unintended administrative burdens and costs; workplace disruptions due to unscheduled and unplanned absences are common; employers must contend with unworkable notice requirements; employer policies are routinely over-ridden by heavy-handed regulations; and a decline in voluntarily provided sick and other paid leave is attributed to DOL's problematic FMLA regulations. We agree that these and other difficulties with the FMLA require technical corrections in order to restore Congress' original intent in passing this legislation ten years ago. Changes are also needed to resolve administrative and compliance problems suffered by employers who are making a good faith effort to comply with the Act.

Your legislation, supported by several past hearings in Congress on the FMLA, accomplishes four important objectives. First, it repeals DOL's current regulations dealing with "serious health condition," which extend federal leave rights to a large number of minor illnesses such as the common cold. Indeed, even federal appeals courts have found themselves constrained by these regulations to find that a case of garden variety flu entitled an employee to up to twelve weeks of leave while she recovered. The Family and Medical Leave Clarification Act restores Congress' original intent to limit leaves to truly serious medical or health conditions.

Second, in order to minimize employee abuse and facilitate employer record keeping, your bill would amend the FMLA to permit employers to insist that intermittent leave be taken in minimum blocks of four hours.

Third, the bill shifts to the employee the responsibility for requesting FMLA protected leave. This eliminates the need for an employer to question an employee concerning his or her family's private matters and provides some liability protection for supervisors who cannot reasonably be expected to master the intricacies of this law and its complex and vague regulations.

Finally, in cases of an employee's own serious health condition, your bill allows an employer to require the employee to choose between unpaid FMLA leave and paid leave under an employer plan or collective bargaining agreement. This change provides incentive for employers to continue preexisting, voluntarily adopted sick leave policies.

In conclusion, the Family and Medical Leave Clarification Act is a well-considered response to some of the most important concerns involving the FMLA. We thank you again for introducing this legislation which is responsive to these problems, while simultaneously helping to restore the original intent of the FMLA and maintaining the fundamental protections embodied in the law. We look forward to working with you to enact H.R. 35.

Sincerely,

R. Bruce Josten

Executive Vice President, Government Affairs
U.S. Chamber of Commerce