Joan Gale Quoted in Workforce Management
"FMLA Review Goes From Hurry-Up to Wait Mode"

The article "FMLA Review Goes From Hurry-Up to Wait Mode" posted on February 22, 2007 on Workforce Management.com notes that "More than 14 years after it became law and five years after being at the heart of a Supreme Court case, the Family and Medical Leave Act is being formally analyzed. The Labor Department is sifting through 15,500 responses to its request for information. At this point, the Labor Department could recommend regulatory revisions. That process also would require a comment period. Only Congress can change the underlying law. FMLA permits workers to take up to 12 weeks of unpaid leave to treat a major health condition, to care for a relative with a health problem or for the birth or adoption of a child. Companies have used the FMLA review to highlight their concerns about administering the law. A survey by the Society for Human Resource Management found that 78 percent of HR professionals say employees don’t understand medical leave rules, including the requirement to notify employers. Intermittent leave and the definition of a serious health condition also have vexed employers. “The No. 1 feedback we get from our clients is the difficulty in managing intermittent unplanned leave,” says Joan Gale, a partner at Seyfarth Shaw in Chicago. Workers don’t have to provide a note from their doctors when they take leave. "You have to take it on faith, basically, and that’s the hard part,” Gale says. FMLA advocates argue that the law has benefited businesses by increasing employee engagement through helping them cope with personal problems. They will resist scaling back FMLA and are promoting paid leave so more workers can afford to participate. One worry among FMLA supporters is that the government will make changes based on company narratives. As Labor Department officials review FMLA, litigation related to the law “is exploding,” Gale says. It is a challenge to get FMLA suits thrown out on summary judgment because juries often are required for the heavily fact-based cases. Still, corporate America is not seeking to abolish FMLA. “Most of our clients have had leave for years, long before FMLA,” Gale says. “It’s very hard to manage, that’s all. We see some abuse.”