Richard M. Brennan, Senior Regulatory Officer
Wage and Hour Division, Employment Standards Administration
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, DC 20210
January 22, 2007
Dear Mr. Brennan:
We write on behalf of the American Association of University Professors (AAUP) in response to the Department of Labor’s request for comments on the Family and Medical Leave Act of 1993 (FMLA). We appreciate the opportunity to provide information on the importance of the FMLA as a baseline measure that enables workers to balance their own health needs and their responsibilities as family caregivers with the demands of income-generating employment.
The December 1, 2006 Request for Information (RFI), soliciting comments on regulations implementing the FMLA, raises concern that the Department of Labor may be considering changes to the regulations that would diminish the FMLA’s protections and scale back the FMLA’s coverage for workers’ health and family needs. We strongly oppose changes that would limit the scope of the FMLA, and we urge the Department to adopt regulations that will ensure workers can take full advantage of their FMLA protections.
The AAUP is a non-profit charitable and educational organization that promotes academic freedom, tenure, and due process in American higher education. The AAUP has more than 40,000 members at colleges and universities throughout the United States. Nearly all colleges and universities are covered employers under the FMLA, since they have 50 or more employees within a 75-mile radius. As a result the FMLA has a nearly universal impact on higher education. The AAUP has long advocated on behalf of college and university faculty for policies that provide the security of employment necessary to protect academic freedom, along with compensation and leave policies that are sufficiently generous to attract persons of ability to the academic profession. In 2001 the Association adopted as policy a “Statement of Principles on Family Responsibilities and Academic Work” that contains policy recommendations addressing the difficulties many faculty members, and especially women faculty, encounter in combining academic and family life. Although these recommended policies go beyond the requirements of the FMLA, the FMLA remains an important component of the set of policies and practices that enable faculty simultaneously to pursue their careers and raise families. In 2002, the AAUP also published a guidebook, The Family and Medical Leave Act: Questions and Answers for Faculty, by Donna Euben and Saranna Thornton, that elaborates on our understanding of the proper interpretation of the FMLA as it relates to college and university faculty members. The guidebook was published in response to numerous queries from faculty and administrators, an indication that family and medical leave is an especially important benefit.
We offer the following comments that relate specifically to the circumstances of college and university faculty, and to some extent to other employees of colleges and universities. Many of the proposed regulations have particular importance for academic professionals because of the unique way in which their normal employment contracts are structured and the flexible and varying nature of academic work. The first three comments are offered in response to specific issues raised in the RFI; the remaining comments provide information on additional points not raised in the RFI.
In section IIA (page 69508, third column), the RFI raises the issue of combining non-consecutive periods of employment in order to qualify for FMLA leave under the 12-month minimum employment provision. This eligibility determination might have special relevance for the situation of contingent faculty, both full-time and part-time faculty not on the tenure track, who now make up at least 65% of faculty at degree-granting institutions in the United States. Part-time faculty, who comprise 46% of all faculty, are generally employed on a course-by-course basis for a specific academic term (a semester or quarter, often a period of about three months). Although their faculty appointments generally specify that they are not guaranteed continuing employment at the institution, many are hired repeatedly over a period of several years. Similarly, many full-time non-tenure-track faculty are hired into positions on academic year (generally 9-month) contracts that do not guarantee reappointment, although they often receive successive appointments year after year. It is imperative that this large group of contingent faculty not be “defined out” of the protections of the FMLA by an arbitrary limit on counting periods of employment, particularly given that the group now constitutes the majority of university and college professors. We therefore recommend that the 12-month employment criterion be interpreted to include non-consecutive periods of employment by contingent faculty, entitling them to the job protection provisions of FMLA.
Further, full-time faculty with tenured appointments often take unpaid leaves of absence for a semester or a year to serve as a visiting scholar at another college or university, to participate in a foreign exchange program, or to work at a policy research center or with a government agency. Although during this time the faculty member may not technically be an employee of his or her home institution, there is an expectation of a continuing employment relationship. Requiring such faculty employees to give up their eligibility for FMLA in the first 12 months after they return from such postings would diminish the valuable exchange of expertise between academe, government, and industry. We recommend that the 12-month employment criterion include non-consecutive periods of employment prior to the return from such a working leave.
In section IIC (page 69509, first column), the RFI asks whether scheduled holidays should count as part of an FMLA leave. We note that many colleges and universities have extended breaks of a week or more between terms in the academic year, during which time classes are not in session and the institution may be effectively closed. The academic calendar also provides full-time faculty on academic year contracts a potential break from regular duties of up to three months in the summer. We recommend that neither scheduled holidays nor these break periods be counted as part of an employee’s FMLA leave, if their presence on campus would not otherwise ordinarily be required.
At section IIG (page 69509, third column), the RFI asks whether “light duty” work should count against FMLA leave entitlement and/or reinstatement rights. The AAUP, in its 2001 Statement (referenced above) and earlier policy statements, has advocated for the creation of modified duty policies that allow faculty to obtain relief from some teaching or other employment obligations, in order to attend to family caregiving while remaining in active-service status. The AAUP encourages institutions to explore the possibility of adopting policies providing for short-term periods of modified duties at full pay. These modified-duty arrangements are not considered “leaves” and do not affect the faculty member’s status. We recommend that such periods not be counted against an employee’s FMLA time allotment.
Although many full-time faculty members have significant control over their own work schedules, at some colleges and universities they do not accumulate paid leave time during the academic year. As a result, in case of a serious medical condition, or for the care of family members, they must rely on the provisions of the FMLA for job protection while on leave.
Sections 825.202(a) and (b) of the FMLA allow an employer to limit the amount of FMLA leave taken by a married couple when both spouses work for the institution. The limitation requires that time taken for birth or placement of a child or care of the employee’s parents counts against the FMLA limit of both spouses. This limitation imposes a hardship on faculty members more frequently than other employees, as many colleges and universities are located in towns where there is no other academic employer. We therefore recommend elimination of this limitation. We urge that, at a minimum, the care of an employee’s parents not be included in this provision for shared FMLA leave.
We support the principle that the federal FMLA leave should not run concurrently with any pregnancy disability leave a woman is entitled to under an employer’s disability policy.
In general, we oppose any changes to the current eligibility standards that would impose additional barriers for workers seeking to take FMLA leave. Existing rules regarding eligibility were drafted to strike an appropriate balance between the needs of employers and employees. At a minimum, this balance should be preserved to ensure that workers who meet the statutory requirements for leave are able to take that leave.
Similarly, we strongly oppose any regulatory changes that would scale back the definition of “serious health condition.” The current regulations defining “serious health condition” reflect the practical reality that serious health conditions requiring family or medical leave can sometimes be of a fairly short duration.
The Department of Labor should require employers to take steps to provide workers with adequate information regarding their rights and responsibilities under the FMLA. Employers also should be required to inform workers promptly when they are using their FMLA leave, and to maintain records of FMLA leave balances. We strongly recommend that the Department of Labor significantly increase efforts to educate the public about the FMLA.
Current FMLA regulations properly prohibit employers from counting FMLA leave against an employee in determining eligibility for employee benefit programs, including attendance awards. The regulations appropriately recognize that workers should not be penalized for exercising their FMLA rights.
We oppose any changes to the medical certification regulations that would impose additional unnecessary obstacles for workers seeking FMLA leave. The existing medical certification regulations appropriately balance a worker’s interest in a manageable certification process that does not impose unreasonable burdens with the employer’s interest in accurate certification of the worker’s medical condition. Additionally, the regulations recognize that the employer’s judgment regarding an employee’s health condition should not be substituted for the professional medical opinion of the employee’s health care provider. We also oppose any regulatory changes that would allow employers to directly contact a worker’s health care provider, which unnecessarily violates the worker’s right to keep medical information confidential.
In the fourteen years since enactment of the FMLA we have witnessed a change in our society’s views about the appropriate balance between employment and family responsibilities. Especially in the last five years, this discussion has had a significant impact on our nation’s colleges and universities. Where previously there was a presumption that an academic career was all-consuming and precluded significant involvement in family caregiving, widespread recognition now exists that supporting faculty members in their lives beyond the classroom and the research laboratory is critical to attracting the most capable teachers and scholars to the academic profession. Because the FMLA provides only a minimal foundation on which to build such support structures, the AAUP will continue to advocate on behalf of expanded policies, including paid family and medical leaves. Such expanded policies will help create a more responsive climate for integrating faculty work with family responsibilities, in order to ensure the quality of higher education for future generations.
Thank you for the opportunity to comment on the importance of the Family and Medical Leave Act for college and university faculty, as well as for millions of working Americans and their families. If you would like more information about AAUP policies, please contact John Curtis, Director of Research and Public Policy, in our Washington office at 202-737-5900 ext. 143 or jcurtis@aaup.org.
Sincerely,
Ann R. Higginbotham, Ph.D.
Chair, AAUP Committee on Women in the Academic Profession
Professor of History, Eastern Connecticut State
Gerry Turkel, Ph.D.
Chair, AAUP Committee on Government Relations
University Professor of Sociology and Legal Studies, University of Delaware
(posted 1/07)