The Wall Street Journal-20080205-Fixing Family Leave

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Fixing Family Leave

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Few laws are so universally acclaimed as the 1993 Family and Medical Leave Act, which is based on the assumption that allowing employees unpaid leave is cost free. It isn't, and we're glad to see the Labor Department is finally taking steps to end some abusive practices.

The law allows employees up to 12 weeks of unpaid leave a year to take care of themselves or relatives with a "serious medical condition." They can also take off for maternity, adoption or newborn care. That seems simple enough, but the courts continue to strike down regulations that the Clinton Administration issued to implement the act, and the result has been legal and economic confusion.

A 2005 study by the Employment Policy Foundation found the law's cost to businesses in 2004 was a not-so-cheap $21 billion. This included $5 billion in lost productivity, $6 billion to continue health benefits for employees on leave, and $10 billion in replacement labor costs -- including wages to employees who had to work additional shifts or overtime to fill in for the missing.

With these costs in mind, Secretary Elaine Chao's Labor Department last month issued rules to clear up ambiguities in the law that were being exploited. Take something called "unscheduled intermittent leave." Under current rules, an employee with a medical condition can simply fail to show up for two days before claiming leave. And since leave can be taken a few minutes at a time, employees can show up late, leave early, or disappear for an hour without notice. This is an invitation for misuse, especially at time-sensitive businesses (say, emergency first response or assembly lines) and many employers have lost control of their workforce. Under the proposed changes, employees would generally have to call in to request leave before taking it, which seems fair.

Labor's proposals would also clear up loose requirements for certifying what qualifies as a "serious" medical condition. Under current rules, workers can get an open-ended doctor's certificate for a condition -- asthma, migraines, whatever -- that allows them leave at any point. Under the new rules, companies can require employees to renew that certificate every year.

Separately, and appropriately, President Bush last week signed an expansion of the law that would allow family members to take up to 26 weeks of unpaid leave to care for wounded military personnel. The Labor Department's new rules address this expansion in such a way that it will allow families to care for the wounded but without opening up opportunities for abuse.

Many Democrats on Capitol Hill want to expand the law even further, imposing it on businesses with fewer than 50 employees, and making companies provide paid days off. But that would only expand the costs, and make employers even more reluctant to hire in the first place -- as in Europe. Meantime, the new rules will help ensure that family leave is taken by employees who really need it, not by slackers gaming the system.