Difficulties in the Implementation of FMLA (the Family and Medical Leave Act, 1993)

Difficulties in the Implementation of FMLA by Human Resource Departments in Business Environments

Burbank, California; November 3, 2001; Joan Marques, MBA

(URL: http://www.angelfire.com/id/joanmarques/PR)


The Family and Medical Leave Act (FMLA) is a federal legislation, filed within the U.S. Code under Title 29 -labor-, as chapter 28 -Family and Medical Leave- (FindLaw, 2001), and signed in 1993 by former President Clinton, who praised this law as an important step toward helping America’s working families balance the competing demands of work and family (Clinton, 2001, p. 63). The FMLA provides covered and eligible workers with up to 12 weeks of job-protected, unpaid leave to care for a seriously ill child, spouse, or parent; to care for a newborn, newly adopted, or newly placed child; or to take time off for a serious illness of their own (Roberts, 2001, p. 3,20) This entitlement pertains to a 12-month period, [of which] the employer may elect to use the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period (U.S. DOL, 2001).


Since the problems with FMLA are identical for almost all work places, it would not be appropriate to focus this paper on one particular work setting. Therefore, the FMLA complications will be discussed for Business environments in general.


The Problem

Ever since its enactment, the Family and Medical Leave Act of 1993 (“FMLA”) has inspired a lot of head scratching (Ossip & Hale, 2001, p. 25). 

Employers have wondered if they are subject to its provisions. Workers have wondered if they are entitled to leave in specific circumstances they are experiencing. Human resource managers have wondered how FMLA provisions dovetail with other workplace rules and benefits (Ossip & Hale, 2001, p. 25). 

Ossip & Hale (2001) explain that the FMLA applies to employers that employ 50 or more employees for each working day during each of 20 or more weeks in a calendar year or the previous calendar year (p.26).         


Aside from the fact that the FMLA places a hard-to-quantify administrative burden on employers (Anonymous, 2001, p.3), a variety of consulted literature lists a number of recurring confusions regarding the implementation of this law, mentioning the definition of “serious” and “intermittent” illnesses (Campion & Dill, 2000, p.155) as the most significant. The U.S. Department of Labor defines “serious health condition” as, “an illness, injury, impairment, or physical or mental condition that involves either

·        Any period of incapacity or treatment connected with inpatient care … or

·        Continuing treatment by a health care provider which includes any period of incapacity (U.S. DOL, 2001)”

If [intermittent] leave falls under the FMLA, [an] employee must show that it is medically necessary and provide the employer with a projection of both leave frequency and amount of time required (Anonymous, 2001, p. 2).


Unfortunately, there is still no closure to the formulation of these issues because of the many court rulings that are being administered. Flynn (2001) asserts that there have been some Department of Labor opinions indicating they use a fairly loose standard on whether an employee can be deemed to suffer a “serious health condition” under the FMLA (p. 94). Even if an employee has just a cold or the flu, and goes to a doctor and gets a prescription, that can be considered a serious health condition, qualifying [that employee] for FMLA leave (Flynn, 2001, p. 94). Bates (2001) confirms this assertion by taking a closer look at the Miller vs. AT&T Corp. case, in which an employee, who got fired after a holiday-season case of flu with a doctor’s prescription, won pay back plus attorney’s fees from her employer (p. 62), a decision from a federal district court in West Virginia, upheld by the 4th U.S. Circuit Court of Appeals (Gemignani, 2001, p. 18). Court rulings such as the one in the AT&T case [cause] many employers [to be] hesitant to challenge FMLA requests (Bates, 2001, p. 64).


The main problem with intermittent leave lies in its administration, causing a lot of paperwork, confusion and irritation among HR professionals (Bates, 2001, p. 65). Bates (2001) continues that the law requires employers to establish a record keeping system that isolates periods of leave – right down to the smallest increment of time the payroll can measure. That could be leave periods of 10 minutes or less (p. 65).  To deal with such paperwork burdens, some employees elect to outsource FMLA management (Bates, 2001, p. 65).



This brief exposition of just two of the many confusions that FMLA has caused since its first implementation in 1993 indicates that there is a need among managers and supervisors for a better FMLA education so they can find better means of reporting to HR (Campion & Dill, 2000, p. 152). Campion & Dill (2000) recommend a number of steps toward a less complicated administration of FMLA, such as improved tracking methods to lessen the administrative burden, more and improved supervisor/manager training, timely reporting from supervisors to Human resources, minimizing the required administrative paperwork, and increased efforts to communicate the provisions of the act to all employees (p. 155-156).




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                Bates, S. (2001). Whirlwind of change (8), [Internet, proquest.umi.com]. HRMagazine [2001, 10/4/01].

                Campion, W., & Dill, J. (2000). An investigation of the impact of higher education of the Family & Medical Leave Act of 1993, [Internet, proquest.umi.com]. Public Personnel Management [2001, 10/6/01].

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                Flynn, G. (2001). The latest focus on the fuzzy FMLA (80), [Internet, proquest.umi.com]. Workforce [2001, 10/4/01].

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                Labor, U. S., Department of (2001). Employment Standards Administration Wage and Hour Division, The Family And Medical leave Act of 1993, [Internet]. U.S. DOL. Available: http://www.dol.gov/dol/esa/public/regs/compliance/whd/whdfs28.htm [2001, 10/4/01].

                Roberts, S. (2001). FMLA's effects weighed (35), [Internet, proquest.umi.com]. Business Insurance [2001, 10/4/01].