When Policy Meets Enforcement
Part 1 – The Family and Medical Leave Act
When we discussed our theme for blogs and social media posts at ETHIX360, we decided to point the tip of the spear at the intersection of policy and enforcement. That can cover a lot of ground, and I might date myself a bit in this first installment by bringing up the Family and Medical Leave Act. I remember when then-President Bill Clinton signed the Act into law in 1993. It was the first bill he signed and I, like many others, thought that this would open the floodgate to new laws and regulations and bring on a collision of policy, societal needs, and selective enforcement around patient rights in general. Then things seemed to stall…for decades until a similar law finally emerged with the Affordable Care Act.
Now we find ourselves (hopefully) finally seeing light at the end of the COVID-19 tunnel so to speak, and we’re still in a debate over two major healthcare reforms – one approaching its 30th birthday and the other signed into law a decade ago.
Policy vs. Regulation
One of the issues I have always had with policy driven by regulation is the difficulty in the workforce to understand the nuance, carve-outs, and specifics in the bill and the policy that enforces it in business. There are often discrepancies in the two driven by misinterpretations by companies, over-simplification of policies, and even variance in state and local regulations placed on top of the federal standards.
Take FMLA for example. At one level, it’s pretty easy to get your head around as an employee – you can get up to 12 weeks of leave in a 12-month period if you can’t work due to a serious health condition or because you have to take care of a family member with a serious health condition. Simple enough, right? If only it were so! There are a lot more words in the actual bill like “certain” employees in the 76-page summary released by the Department of Labor.
Let’s say a factory worker is injured playing softball for their church team on the weekend and that injury requires knee surgery. They tell their boss they will need a couple of weeks to recover after surgery before being able to return to the production line. That’s not a stretch by any means, and to a layman could be an obvious application of FMLA. Until you realize that you have to be a “covered” employee working for a “covered” employer... Uh oh. So, let’s go to the company policy and look it up and see. You know, blow the dust off the three-ring binder you got when you came to work here? To be covered I have to have worked there for at least 12 months (of the previous 7 years) and at least 1,250 hours in the preceding 12 months. The “certain” companies part means more than 50 employees in 20 or more workweeks in the current or prior year among other requirements.
Next, the employee has to provide “sufficient facts” to the employer that the leave qualifies, then it all goes to HR to certify. Depending on the state, there can be guidelines that differ to varying degrees. In any event, from “you can have 12 weeks of leave if you have a serious health condition” to a bunch of legal mumbo jumbo and policy interpretation, much is lost on the frontline worker. They are left to deal with enforcement of their rights denied in many cases.
Avoiding Inconsistent Policy Enforcement
This is where the integration of policy and enforcement is demonstrated. What if the employee was denied the leave because the manager wanted to get rid of them anyway and wanted to use this opportunity to do just that? Worse yet, what if the reason the manager wanted to get rid of them was due to their age, sex, sexual orientation, race, or religious beliefs?
The voice of the employee needs a clear path, and those are best served by effective employee communication solutions, commonly called whistleblower systems or hotlines. They could be a phone call to an independent third-party call center or more contemporary technology like apps, web portals, or even social media. Once notice is received by the appropriate people at the company, they need to investigate it quickly, thoroughly, and without bias – and consistently. The person denied their rights under FMLA in one location should not be treated differently than another employee in a different location with a similar experience.
Enforcing Company Policies Effectively
Confused yet? You might be, and if you are that’s OK. More companies manage this poorly than well. Help is on the way, though, with integrated solutions for businesses that give that voice to the employee, allow everyone easy access to policy details, and even manage the investigations associated with allegations of violations to policy. They work as one when properly deployed and can take some of the heat off understaffed and overworked HR teams in small businesses who might not otherwise have the bandwidth to deal with these issues.
Finally, and a thought to leave you with, back to COVID-19 and the bright light shown on these policies and their deficiencies. It’s my view that further work on actual regulations needs to exist to cover workers so it is not purely dependent on a company’s policies or the state they live in. There are a handful of states that have enacted laws to protect workers’ rights with their own paid leave laws – some in fact in direct response to the impact of COVID-19.
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MEET THE AUTHOR
J Rollins is the co-founder and CEO of ETHIX360. J is a well known leader and innovator who has served on senior leadership teams ranging in responsibility from Chief Revenue Officer, Chief Marketing Officer, SVP of Product Strategy and Chief Operating Officer.
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