February 2013

By: James B. Sherman, Esq.

On February 4, 2013 the U.S. Department of Labor published its 2012 FMLA Survey Report, summarizing feedback from employers solicited by the DOL by an invitation for public comment issued April 1, 2011. The DOL’s release of this report coincides with the 20-year anniversary of the Family and Medical Leave Act of 1993. Details of this report – which the DOL has entitled “FMLA is Working” – may come as somewhat of a surprise to many employers.

Among other conclusions reached by the DOL from its survey are that:

• 91% of employers report that complying with the FMLA has had either a positive effect or no noticeable effect on employee absenteeism, turnover and morale.
• 85% of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.
• 24% of FMLA leave – which the report deems to be a “relatively small portion” of FMLA leave taken – is taken as intermittent leave.
• Fewer than 2% of employees who take intermittent leave are off for a day or less.
• Nearly 60% of employees meet all criteria for coverage and eligibility under FMLA.
• 13% of all employees reported taking leave for a FMLA reason in the past 12 months.
• Fewer than 2% of covered worksites reported confirmed misuse of FMLA.
• Fewer than 3% of covered worksites reported suspicion of FMLA misuse.

Of course, the DOL’s survey is based on feedback only from those employers who actually took the time to respond to its solicitation for comments back in April 2011. Perhaps the vast majority of America’s employers do find the FMLA “easy” to administer; that employees “rarely” abuse FMLA leave; and that FMLA has virtually no impact on employee absenteeism. However, as employment lawyers who consult with management on such human resource issues on a daily basis, the significant volume of questions and concerns we hear from employers tell quite a different tale.

One wonders whether the DOL took into account the ever growing number of federal court lawsuits filed each year asserting violations of FMLA rights, before concluding that FMLA is “working,” at least insofar as employers are concerned. It certainly seems as though the FMLA is “working” to provide employment to an ever growing number of plaintiff lawyers! Whatever the case this author is relatively confident that of the hundreds if not thousands of employers he has consulted with over FMLA issues during the last 20 years this law has been around, few if any of them replied to the DOL survey.