Family
Medical Leave Act 1993: Discovering Pertinent Labor Issues
Introduction
Important changes in the understanding and
management of the Family Medical Leave Act (FMLA) have been developed in the
past 10 to 15 years. Various researchers, practitioners and policymakers now
acknowledge that leaves for workers can be conceptualized from a functional
perspective and that appropriate interventions involve the development of
alternative measures to cope up.
It was
also noted that the establishment of a conducive environment for employment have
served effectively in lowering the prevalence of underachievement among workers.
At present, this philosophical shift has extended to various settings, including
multinational companies and organizations. Managers and directors here have
recognized that most of their employees do need to take leaves over the course
of the year in order to recuperate from illnesses or to take care for a sick
family member. Hence,
the Family Medical Leave Act (FMLA) was enacted
under the term of former US president Bill Clinton
as his government’s alternative way of mitigating these expectations of
employees.
All companies and organizations are governed by their
basic goals and objectives. These objectives are often regarded to as the
“corporate vision” or “corporate philosophy” (, 2001). Thus, certain strategies
are being implemented with the aim of achieving these goals and objectives, and
this constitutes a key element in the characterization of a company or
organization. Personnel are undoubtedly an important indicator in determining
the characteristics of a company or organization.
It is a well known fact that human resources play a
crucial role towards differentiation and a potent source of competitiveness for
any organization or company. Therefore, any organization must constantly comply
in the implementation of the (FMLA) even during
periods of recession. However, the determination of the extent to which an
organization can invest in terms of the implementation of the (FMLA)
depends on the financial capabilities of the company
or organization (, 2004). Finances will also be carefully considered in
determining the target for ample benefits and compensations, because it should
jive with the basic policies of an organization’s human resource development
strategy.
Law
Synopsis
The
Family Medical Leave Act (FMLA), which became effective in August 5, 1993,
applies to companies with an employee base of 50 persons or higher. The statute
provides for the allowance accorded by employers to their employees in taking
leaves of absence for twelve weeks within a twelve month working period for the
following reasons: child birth and neonatal care, child placement due to foster
care or adoption, serious illness of spouse, children or parents, and serious
health condition of the employee preventing him/her from performing essential
employment functions. Since the implementation of the statute several issues
have been raised by employers and employees alike covering the applicability of
the law and the consistency of its provisions with other employment welfare
legislations (, 2006).
In lieu of the present developments in society,
there have been significant visions of learning regarding FMLA that evolved. A
majority of these learning visions are based on the idea that the implementation
of the FMLA involves a social process where knowledge is denied instead of being
acquired passively. The implementation of the FMLA, then, transforms into an
interactive process. The interaction is being verified through the help of the
participants in the implementation process such as the employers and the
employees. In this framework, high quality of implementation would mean the
continued guidance and support of the active learning process of the employers
and the employees. Obviously, this would call for an intensive and phased
guiding strategy.
When in the active pursuit of the implementation
of the FMLA, the interaction of the employers with their employees forms an
integral part towards its success. Collaborative learning as a method of
implementation is gradually being used by employers nowadays. Through this
approach, the employees can learn the advantages and disadvantages of FMLA
through the understanding of its policies in the socialization processes. In the
process, the employees are able to obtain the chance to see their own ideas in a
different aspect and therefore be able to take alternatives into consideration.
The relative effectiveness of this approach is determined with the capability of
the employees to continuously challenge their pre-acquired knowledge by trying
to adapt to the interpretations of their employers.
Aside from the employers and the employees, the
different resources of FMLA belong to a third category of factors of a learning
environment. Moreover, implementation methods of FMLA have shown signs of
significant growth over the past years. Consequently, obtaining knowledge
becomes more complicated. This is because the transformation of all this
information into knowledge requires the employees to possess the appropriate
reference frameworks. But employers can certainly help the employees transform
FMLA information into valuable knowledge.
Review of Related Literature
The implementation of the (FMLA) in most
organizations and companies in the past decade has gradually transformed from
low-level activities into high-profile contributors to organizational success (.
2002). However, budgets are also elevating at a faster rate than the
gross national product. In the midst of this growth and increased influence,
managers and executives of companies and organizations are left with confusing
question: To what extent should be invested in the
implementation of the (FMLA)? Definitely the answer won’t be easy,
especially because the actual levels of expenditures needed is often an elusive
figure, depending on the financial capabilities of the organization. However,
there are basic strategies to could help organizations determine the extent of
investment in human resources development.
Let Others
Do It
This strategy involves letting other organizations implement first the FMLA and
waiting for the right time to see if there have been positive results from those
organizations as far as the performances of their employees are concerned (.
2003). While it may be true that these organizations offer paid leaves and large
benefits and compensations for capable, high-value employees, they in turn
prevent the possibility of having a significant internal investment in terms of
human resource development. Smaller firms and organizations who struggle to
operate efficiently pursue this strategy as a cost-effective approach towards
the implementation of the (FMLA).
The most appealing advantage of this strategy is that
it would provide an excellent alternative for a struggling or financially
handicapped organization that cannot afford to implement the serious initiatives
under the FMLA. Thus, costs are reduced as organizations are saved from spending
too much in the development and implementation of a variety of human resource
development programs.
However, serious concerns in this
type of strategy have also started to emerge, especially since the character of
organizations snatching the strategies of other organizations often draws heavy
criticism.
Invest the
Minimum
This strategy involves investing
only in necessary policies under the FMLA, such as the mandatory twelve (12)
workweeks of leave per twelve (12) months and the protection of employee
benefits even while on leave. With this strategy, minimal resources are spent by
organizations towards the implementation of the FMLA (, 2001).The striking
advantage of this strategy is that it utilizes minimal financial resources. The
strategy also has a high level of efficiency, especially since the leaves are
provided only when they are necessary, and only those people who need the leaves
are determined. Another important advantage is that this process is able to
adapt to the changing needs and status of the personnel. If efficiency and low
costs are needed, this strategy is the most practical for organizations and
companies to pursue. As a disadvantage, however, this strategy provides the
employees with very minimal opportunities to become versatile on their jobs, as
the constant absence in work because of leaves might interrupt their
concentration and focus on their respective jobs. This strategy might also be
neglecting the preparations for future job opportunities. Also, this strategy
may be a hindrance towards the growth and innovation of an organization and its
human resources, since FMLA does not include concrete plans regarding the
preparation of their employees towards seeking new approaches.
Invest Until
It Hurts
This strategy involves the use of
excessive investments in the
implementation of the (FMLA).
An organization that pursues this strategy invests astronomical amounts of
resources on activities in order to meet the need of their personnel to have
extended leaves than usual, accompanied by ample compensations and benefits (,
2002). There are several factors which contribute to an organization’s
overspending on the implementation of the
(FMLA). But the most prominent factor is the
organization’s desire to develop a pool of high-valued employees in a variety of
approaches solutions and activities, like giving leeway to their employees as
far as filing their leaves are concerned. Another factor is the continued
expansion and growth of the human resources of rival organizations and
companies. This situation all the more puts so much pressure on smaller
organizations to strengthen their human resources to ensure efficient
operations.
The third factor is the sudden
emergence of unconventional human resource development options. Due to the
innovations in modern technology, organizations suddenly became capable of
implementing unconventional options for making their pool of human resources
more effective and efficient. The emergence of this type of strategy brings in a
critical question: Could an organization invest too much on efforts to implement
the FMLA and please their employees? In the advent of changes in the working
environments nowadays, the need for vacation and sick leaves becomes imperative
for continued growth and development. Therefore, there is a possibility that an
organization may invest more than what is necessary. However, when employees
spend too much time in their vacation leaves, the costs increase while at the
same time depriving them of other important activities they have to accomplish.
The proponents of this strategy
single out the relationship between the employees’ desire to learn and job
satisfaction, which are determining factors for their decision to stay with the
organization. These employees rely on the possibility that excellent benefits
and compensations even while at leaves might reduce turnover. However, for
organizations having difficulty searching for an innovative benefits and
compensation package within FMLA, additional training can lead to new ideas,
techniques and methods which can lead into improved operations of the
organization. Also, since there are unpredictable changes that happen once in a
while, it is impossible to foresee the skills needed in the future. However,
what is evident is the fact that employees need to set their eyes off work once
in a while for growth and development.
As a disadvantage, this strategy
will definitely generate excessive costs because it represents an inefficient
approach towards handling the implementation of FMLA. All types of benefits and
compensations may be developed, but they are not necessarily based on business
needs, but rather on employee preferences on when they will have to file their
leaves. Investing too much on the implementation of FMLA may eventually lead to
higher turnover. This is because employees sometimes have the tendency to
schedule leaves very early for future opportunities on their own ways, and this
could create false expectations.
Invest
Whenever There Is an Acceptable Return on Investment
This strategy is actually very
simple in nature, but needs the firm commitment of an organization in order to
be implemented. This involves investing on the implementation of the FMLA for as
long as there is a return on investment (ROI) in terms of organizational
outputs. This strategy requires determining the payoff of employee efforts for a
few selected outputs, but evaluating every aspect at some level. In the programs
chosen for ROI analysis, the outputs are translated into monetary values and are
then compared to the actual costs (investment) to calculate the ROI. Therefore,
the level of investment will be increased whenever the return is positive (,
2004). While it may be true that determining the ROI value is challenging, the
rewarding part is that it is already being implemented by a number of growing
organizations. These organizations perceive ROI as the best way to evaluate the
extent of human resource development investments. According to them, matching
the investment with the return is the economic approach towards an effective
scheme for the implementation of FMLA.
Most managers of organizations and
companies agree to the impending need to review the expenditures of the
implementation of FMLA with a more economic-oriented scrutiny. When compared
with other evaluation measures, ROI is able to give a sound perspective in
determining the payoff of leaves of employees. The ROI process actually develops
a tabulation of six types of data: reaction to the program, learning,
application, impact, return on investment and intangible benefits. These types
of data reflect the effectiveness and efficiency of the human resource
development efforts of an organization, and the means for its improvement (,
2003).
This approach also provides a strong
link between the organizational needs and employee performance. This is because
the ROI process is based on the perspective of beginning with the end in mind.
This involves the utilization of predefined organizational measures to determine
the success of human resource development programs. The data that will be
obtained from this process will represent the critical information needed to
secure the continued support for the implementation of FMLA, particularly with
managers of small scale organizations. When managers get convinced that the
implementation of FMLA is improving their organizational operations and helping
them reach critical goals, they will readily support these efforts.
Invest With
the Rest
This strategy involves investing
together with other organizations no matter what. With the continued
patronization of the implementation of FMLA, this strategy would no doubt become
very attractive through time. However, the challenging part in this approach is
the fact that the company has to find the correct way to implement FMLA. Only
after finding the correct way can the company start taking the necessary steps
to make sure that they are considered best practices. When in the process of
utilizing this strategy, the relevant policies of FMLA and its interpretation
becomes a crucial issue. Fortunately, just like most labor laws in the US, a
number of alternative measures are readily available. Probably the most common
among the available measurements is the investment as a percentage of a
company’s payroll. For instance, the United States companies have an average of
about 1.2 percent, while other excellent companies spend about 3 percent to 5
percent. These relevant data may have different ranges depending on the
definition of actual investments. The disadvantage, however, is that there would
possibly be no agreement in terms of what costs should be involved. Some other
alternative measures include direct and indirect costs, and direct,
out-of-pocket expenses. The actual investment per employee can also be
different. The most common measure is the direct cost of learning divided by the
number of employees and averages from $1,000 to $1,200. Other measures involve
focusing on expenditures as a percentage of revenue or expenses in operations.
The primary advantage of this
strategy is earning the benefits of the best practices in terms of the
implementation of FMLA. Also, relevant data becomes readily available. If the
implementation of FMLA is able to represent excellent practices, the results
will undoubtedly reflect what most companies want to achieve. Also, the
implementation of FMLA has started to become an approach that appeals to a
majority of corporate managers who are very eager to make comparisons of their
investments with others whom they admire and respect (, 2003).
However, there are several issues
that may cause concerns with this strategy. What one company invests may not
necessarily be what another company needs. Each company is different in terms of
its employees, systems, philosophy and markets. Because of this, companies may
need either a larger or smaller investment as against a best-practice firm.
Also, the implementation of FMLA in terms of a medium-level investment may
sometimes lead to unsatisfactory results. This would force the company to
implement programs in order to meet the minimum requirements. This situation
most commonly occurs when there is a specific number of hour or days allotted to
formal learning programs.
Current
Issues on the Employer’s Side
A
study conducted by the (2006) to evaluate the operation of the Family
Medical Leave Act 1993 showed that the statute pose administrative burdens for
employers especially in the area of record-keeping and coordinated compliance
together with other labor laws. Apart from this, reports from employers have
also shown dramatic increases in the absences of employees for brief periods of
time indicating that the reasons for doing so may not be as serious as the
situations contemplated by the law.
These issues on the part of the employers imply that they view the law as
administratively burdensome through the requirement of certification and
recertification as needed in the processing of the leave request from employees.
With the increasing number of requests, the employer needs to allocate company
time and even added personnel in the human resources departments together with
the need to obtain temporary workers to take the place of the employee on leave
for the duration of the employment. These burdens may already exist because of
the operation of labor laws enacted earlier than the FMLA but the burden becomes
heavier with the compliance requirements provided by the statute. (, 2006)
In
consideration of these employer issues, Congress passed bills intending to
simplify the operation of the law in relation to administrative burdens to
employers. These bills include recommendations to narrow the definition of the
factors considered as serious health conditions to validly support a leave
application, establishment of minimum leave requirements of half-day in order to
prevent leaves for non-serious reasons, and the increasing of the requirements
of notification from employees. (, 2006) Although these bills were accorded a
non-priority status in Congress, the emergence or re-emergence of these issues
in the future would support their enactment, if these issues become relevant in
the future.
Other difficulties that employers encounter upon the implementation of FMLA
include:
A.
Difficulty in Gathering Information
Employers have the primary role to make specific identifications of all the
possible sources of evaluation information which includes observable employee
behaviors. However, when employees often are on vacation leaves, then gathering
this pertinent information becomes extremely difficult. This is because aside
from the observations of the immediate supervisor, performance evaluation
information can still come from a variety of other sources, including the
employees, subordinates, and work products (, 2001). Whenever a company utilizes
performance information from individuals other than the employee’s immediate
supervisor to build up the employee’s annual evaluation, the management informs
the employees of the possible sources at the start of the performance cycle,
where they receive their performance plans.
B. Difficulty in Development and Presentation of Performance Plans
Employers are the ones who develop their employees’ performance plans according
to instructions on the Employee Work Profile form. The plans are signed by the
employers and then passed on to the management for approval. But with their
employees often on leaves, employers cannot make sure that their performance
plans are complete and adequate before signing the forms (, 2003).
The employers also discuss the performance plans with their employees in a clear
and organized manner. Generally, discussions are conducted within 30 days of the
start of the performance cycle. But this is also the time when most employees
take their leaves (, 2003).
C. Difficulty in Documentation of Performance
Employers encounter a hard time documenting their employees’ performance and
provide feedback to them from time to time throughout the performance cycle
while they are on leaves. Instead, documentation are done only in the form of
memos, and these are retained in the manager’s confidential files, instead of
being in the employees’ personnel files (, 2002).
D. Difficulty in Identification of Substandard Performance
Employers also are unable to exercise their authority to determine substandard
or unacceptable performance of their frequently on-leave employees (. 2002).
Employers normally address minor or marginal performance issues through
performance counseling and coaching.
Current
Issues on the Employee’s Side
The
provisions of the Family Medical Leave Act cover the application of law to
different situations. Serious illnesses as justification for the leave
application include injury, impairment, injury, physical or mental health
condition, and continued treatment done by a health care provider. During the
duration of the leave, the employer is obliged to maintain the employee’s
coverage under the health plan. After the duration of the leave, the employer
must take the employee back restoring him or her to the same or a similar job.
(, 2006). An issue arises in the accommodation of employees returning from their
leave. Since the law requires the employer to restore employee to the same
position, this creates a situation that could be beneficial or non-beneficial to
the employee depending upon the situation. This benefits the employee, when the
employer allows the former to do a reasonably lighter work due to an injury,
disability or the inability to temporarily or completely perform pervious tasks.
This does not benefit the employee, when the employer expects the employee
perform the same tasks prior to the injury or serious illness despite the
inability of the employee to comply. This implies that this provision of the law
is open to abuse requiring the employer to seek existing modes of redress.
Moreover, the (2006) provides that employers may not require an employee
eligible under the FMLA to agree to a reasonable accommodation instead of taking
leave. Again, this may work to the advantage as well as the disadvantage of
employees depending on their level of information regarding the options
available to them and their degree of assertion of their interests. On one hand,
employers may opt to recommend an option that offers the least burdens to the
company even if this may not work to the best advantage of the employee. If the
employee accedes due to lack of knowledge about other options or the merits of
available options, the law opens the possibility of employers taking advantage
of their employees. On the other hand, well-informed employees able to identify
the options and weigh the merits of these alternatives may assert the option
that best serve their interests based on the assumption that all the options do
not defeat the rights of the employers or other employees. In this instance, the
operation of law allows the employee to negotiate application to a different
accommodation or take leave.
In
addition, seeking redress for violations of the law proves to be difficult for
employees. FMLA was assigned to the US Department of Labor’s Employment
Standards Administration particularly the Wage and Hour Division together with
the responsibility to investigate violations. Upon satisfactory proof of
violation, the division files a court action in behalf of the employee. An
employee with a valid compliant have the option to bring a civil action directly
in court but it cannot file a compliant with the division without first filing
the civil action. (, 2006) This implies that employees with grievances have to
first go to the courts before seeking redress from the division despite the
primary responsibility of the division of investigating violations giving it the
best position to settle complaints.
Impact on Industries
The recent efforts of the US government to
educate the public of the existence of FMLA would definitely make learning easy
for every individual who desires to do so. Also, the growing impact of
information and communications technology (ICT) fits in with the larger
transformation towards a knowledge-based industry. Most companies and
organizations are already adapted to ICT. Nowadays, they are more and more using
artificial intelligence systems in order to educate their employees regarding
FMLA.
Learning processes of FMLA are being influenced
by the interaction of two major factors. On the one hand, the instructional
factors: the educational philosophy brought about by the employers / management
and its conversion into didactical ideas. On the other hand, organizational
factors: the employees, infrastructure and policies related in this area. It is
obvious that the employees must possess a sound vision of policies, while the
employers must use of the operating budget efficiently in order to effectively
perform their educative role in society.
Nevertheless, the employers need an interaction
between both factors. This is because in order to respond to the new visions of
FMLA, they will eventually transform into a model together with the various
aspects of the working environment. In return, the employees will have to
continuously monitor their limitations and along the process introduce
innovations.
Conclusion
Overall, the rationale of enacting labor legislations suffices to justify the
viability of the legislation despite the issues that have arisen on the side of
both employers employees. Despite the claims of employers that many of them
provide more than adequate benefits to their employees, the fact remains that
there are still employers implementing the barest minimum in terms of employee
benefits. The disparity in the benefits accorded by different employers required
legal intervention in enhancing the required benefits to improve the standing of
employees. The important consideration is ensuring adequate benefits and the
implementation of the law is justified by this objective. Despite the issues
raised by employees, the legislation has improved the general condition of
employees but there is need to direct their issues towards legislative reform
channels in order to enhance the law.
Some employers argue that the fast pace of globalization ultimately becomes the
driving force behind the formulation of agreements and rules for business
conduct, such as the FMLA. The implementation of FMLA may have the potential to
create enormous economic and social consequences. They can easily drive away the
major employees within a company. They can also determine how and where people
should work. However, earning the approval of the US government for the
amendments on FMLA would never be easy.
Organizational change amidst the implementation of FMLA undergoes through a
series of stages. At every stage, the effective management of
human resource (HR) and cultural
issues is critical. This is initiated by the
identification of the HR issues and their
significance for the company’s activities. If not handled properly, this could
lead to the further downfall of the organization instead of going upward towards
the ladder of success.
It is a common knowledge that the implementation of
FMLA benefits companies and organizations especially those which are relatively
new and is still in their early stages of development. Through the
implementation of FMLA, companies and organizations will show signs of rapid
growth brought about by the re-energized workforce. And it is further being
expected that within the next years the tremendous growth and advancements in
human resource development will continue in companies and organizations because
of the implementation of FMLA. Therefore, the continued growth and development
will also make it imperative for localization to occur in companies and
organizations in the years to come as the impacts of the implementation of FMLA
make their way.
The
implementation of FMLA
offers companies and
businesses tremendous benefits in terms of improvement to their human resource
policies in terms of the control of the business and the creative aspects of
entrepreneurship to co-exist peacefully, However, companies and businesses must
not lose sight of its core competencies while introducing the
implementation of FMLA.
Otherwise, the image of these companies and businesses might be put in jeopardy.
Meanwhile, some see
the implementation of
FMLA
only as something
that hinders the productivity of businesses. However, upon close examination,
the
implementation of FMLA
could actually pave
the way for companies and businesses to improve even more their capabilities in
enabling the peaceful coexistence of controlling their business and the leave
aspects of their human resources. The bottom line is they would be able
significantly gain in accepting
the implementation of
FMLA.
However, the question remains whether companies and businesses could be able to
implement and accept the impacts of
the implementation of FMLA,
and whether these options can be acceptable to the key stakeholders. Any
business transformation brought about by
the implementation of
FMLA
may also involve the
sharing of expertise. Nowadays, most companies and businesses have traditionally
relied on the inside-out approach. It is important to note that
the implementation of
FMLA
would have many
implications on a business’ values and culture as well as its resources. The key
stakeholders definitely would be concerned with such options and need to be
convinced of the positive aspects
(. 2002).
Somehow, companies and businesses will be able to overcome this barrier in
managing strategic changes brought about by
the implementation of
FMLA
in the process of
implementing any of the above mentioned strategic options.
REFERENCES
