Last month, the Department of Labor finally released proposed changes to its Family and Medical Leave Act regulations. The rules had not been changed since their release in 1993, and have become an increasing source of complaints from employers. The original FMLA rules did not address continuing problems employers face with making key determinations under the law, and a number of their provisions had been invalidated by federal courts. As reported in EmployNews, DOL went through a years long process to receive public comment, with the intent of comprehensively revising the FMLA rules. This effort ran into major political opposition from labor and other groups who saw the revision effort as an attempt to deprive employees of their FMLA rights.
In February, DOL quietly released the revised regulations. The main reaction from employers has been over what the proposed rules do not change. DOL basically threw up its hands and abandoned efforts to address the two major problems with the FMLA for employers: (1) the ever-expanding definition of “Serious Health Condition”; and (2) controlling employee abuse of intermittent leave. On both points, DOL said that it could not devise ways to address employer complaints within the existing statutory language. For example, DOL stated that it could not adopt a rule that would make FMLA leave never available in the case of minor ailments (i.e., colds, poison ivy, etc.), because the “absence plus treatment” language is contained in the underlying law.
In other words, DOL told employers that the problem with the FMLA is the law itself, and if employers want relief, it will have to come from Congress. Given that we are in an election year with a Democrat controlled Congress, the chances of any FMLA reform are slim to none.
Even though DOL declined to address employers’ major concerns, the proposed rules contain a number of important technical changes in how the FMLA will be interpreted and implemented. These changes include medical certification and recertification procedures, employee and employer notice requirements, and eligibility requirements. In addition, DOL combined the FMLA revisions with a request for input on rules needed to implement the new FMLA changes adding leave benefits for relatives of members of the armed services.
Comments on the proposed rules are due by April 11, with the new final rules expected later this year. Over the next several weeks, EmployNews will review the new rules, pointing out changes that will affect the day-to-day administration of FMLA policies.