There have been four lawsuits thus far involving the Family Medical Leave Act, two of them against plastics industry firms. In both these cases, judges found in favor of the employers. The two employers, Westlake Polymers Corp., a polyethylene maker based in Houston, and Midwest Plastic Engineering Inc. in Sturgis, Mich., fired an employee for excessive absenteeism. In each case, the women sued saying they were entitled to the leave under the FMLA.
The problem: neither had requested leave under the provisions of the FMLA and both had a history of absenteeism. Each woman had warnings in her personnel file with regard to her absenteeism, each firm said.
Not that these women didn't have valid FMLA-qualifying reasons for needing the leave. But it almost seems as if getting the leave under the FMLA came as an afterthought.
Now, an appeals court in New Orleans has overturned the lower court's ruling in Westlake's case, saying an employee need not expressly ask for leave under FMLA to have their absences
covered under it. This is headed for the U.S. Supreme Court.
Like most laws enacted to help people, FMLA has the potential to be abused. Instead of an aid to ensure that employees won't lose their jobs if they have illnesses or family problems that necessitate them taking leave, FMLA can be used as an excuse for employees with chronic absenteeism problems.
To prevent abuse, provisions in FMLA state that an employee must ``provide at least verbal notice'' of the need to take FMLA leave, or in the event of an emergency, to notify the employer ``as soon as practicable.''
I surveyed numerous plastics processors this past summer the first time I covered the Westlake case. Most I spoke with said they already had their own policy regarding personal leave for their employees. Many said that they would never fire a good employee for needing time off due to illness, accident or a family emergency, and believe that one more government regulation will be just another fly in the ointment. I believe they're right.
The problem with laws is that many times they become an end unto themselves instead of a means to an end. Then it's up to the Supreme Court to interpret intent so that abuse is stopped.
In a time when litigation is all too often used to make someone else responsible for the negligence or lack of responsibility on the part of an individual, the FMLA could have a backlash among employers. No one will benefit from that.
Goldsberry is a Plastics News correspondent based in Phoenix.