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Bush Administration Intends to Change FMLA Regulations

January 25, 2008
Related Topics: Medical Benefits Law, Employee Leave, Workforce Planning, Benefits, Latest News
Before the Bush administration exits a year from now, it intends to modify a major employee leave law for the first time since it was enacted 15 years ago. But the extent of the revisions likely will remain a mystery until sometime in February.

On Thursday, January 24, the Labor Department sent to the Office of Management and Budget proposed regulatory changes to the Family and Medical Leave Act.

Business groups have criticized aspects of FMLA for causing administrative headaches, while advocates want to see it expanded. It’s not clear yet which side will be more disappointed by the proposal.

Although a Labor Department official announced the move through interviews with the Associated Press and The New York Times, the department has not provided any details about its recommendations.

The White House budget office has up to 90 days to review the proposal, but observers estimate that it likely will be published by mid-February in the Federal Register. The public would then have 60 days to comment. Then the Labor Department would issue a final regulation.

The law allows employees up to 12 weeks of unpaid leave for the birth or adoption of a child or to deal with their own or a close relative’s sickness. It covers about 76 million workers.

The proposed revisions could include requiring that employees give prior notice before taking leave and revamping the medical certification process, according to published reports.

The proposal includes regulations that will implement an expansion of FMLA to provide up to 26 weeks of leave to injured military service members, according to the AP account. That provision was included in a larger defense bill that has been sent back to President Bush after he refused to sign it in December because of unrelated Iraq war language.

In addition, the FMLA language sent to the White House defines when employees would be eligible for 12 weeks of leave because of “any qualifying exigency” related to a spouse, son, daughter or parent being on or called to active duty.

The leave law has been controversial for most of its existence. A Labor Department survey about FMLA last year generated 15,000 comments, many from employers complaining about disruptions caused by unscheduled intermittent leave and the fuzzy definition of a serious health condition.

No one yet knows whether the scope of the proposal encompasses such big issues.

“I hope it does more than nibble around the edges,” says Marc Freedman, director of labor law policy at the U.S. Chamber of Commerce. “Maybe they’ve done something here that will have an impact—maybe not a wholesale revision but some approach that will help tighten it up and give employers more control over the use of [unscheduled intermittent] leave.”

FMLA advocates are worried that the Labor Department will undermine the law by modifying it to satisfy the business community.

“The Bush administration should do nothing more than … clarify the penalty for employers who do not properly designate and notify employees about FMLA leave,” said Debra Ness, president of the National Partnership for Women & Families, in a statement. “There is no need to do anything further to the FMLA, which is working well and has helped tens of millions of people.”

Mark Schoeff Jr.
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