Close Confusing FMLA Loopholes, SHRM Member Testifies

By Kathy Gurchiek Feb 22, 2008

Society for Human Resource Management (SHRM) member Katheryn Elliott, SPHR, testified before a U.S. Senate subcommittee hearing Feb. 13, 2008, regarding proposed modifications to key aspects of the Family and Medical Leave Act (FMLA).

The FMLA, enacted in 1993, has allowed more than 60 million workers to take up to 12 weeks of unpaid leave if they are ill, need to care for a sick family member, or need time off for the birth or adoption of a child.

Elliott is assistant director of employee relations for Central Michigan University. After 15 years implementing the federal statute in the workplace, Elliott said she and other HR professionals face significant challenges that the FMLA presents.

​While she said she has enjoyed FMLA benefits in her role as a single mother of 7-year-old twin boys and a 4-year-old daughter and as the caregiver to an ill parent, Elliott pointed to what she called “confusing loopholes” that need fixing before Congress provides additional leave benefits.

The FMLA’s current definitions of what constitutes a “serious health condition” and “intermittent leave” concern HR professionals, she told Sen. Chris Dodd, D-Conn., chairman of the Senate subcommittee on Children and Families and committee members Sen. Orin Hatch, R-Utah, Sen. Edward Kennedy, D-Mass. and Sen. Patty Murray, D-Wash.

“Practically any ailment lasting three calendar days and including a doctor’s visit now qualifies as a serious medical condition” because of DOL regulations and opinion letters, she noted in written testimony that made several references to the 2007 SHRM survey FMLA and Its Impact on Organizations.

Also, under current policy, intermittent leave is often difficult to track, according to SHRM. It says intermittent leave poses significant staffing problems for employers and places an unexpected burden on employees who must cover the workload of absent co-workers with the unintended consequence of unpredictable, unscheduled and potentially open-ended leave.

HR professionals face challenges in interpreting what she and SHRM believe are contradictory guidance from the DOL regarding whether serious health conditions include ailments such as the common cold, the flu and non-migraine headaches, Elliott stated.

Proposed changes, published Feb. 11 in the Federal Register, include technical changes to reflect decisions by the U.S. Supreme Court and lower courts; expansion of the law to provide military family leave; increased notice obligations for employers so employees will better understand their FMLA rights; revising the employee notice rules to minimize workplace disruptions attributable to unscheduled FMLA absences; and guidance on the regulatory definition of a “serious health condition.”

Given her years of experience administering FMLA leaves, she told the committee, she is “confident this important statute is in need of targeted modifications to ensure that it serves the best interests of both employees and employers.”

SHRM looks forward, she added, to working with the subcommittee “to craft practical workplace flexibility policies that meet the needs of employees, families and employers.”

Also testifying were:

  • Victoria A. Lipnic, assistant secretary, Employment Standards Administration for the U.S. Department of Labor.
  • Debra Ness, president of the national advocacy group Partnership for Women and Families, which led the creation and passage of the FMLA.
  • Kristin Grimm, president and founder of Spitfire Strategies consulting firm, whose 6-year-old business provides paid and unpaid leave—including paternity leave—even though it is not required to do so under FMLA.
  • Marcel Reid, member of ACORN, the country’s oldest and largest grassroots community organization of low-and moderate-income families.

Kathy Gurchiek is associate editor for HR News. She can be reached at


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