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Opponents of FMLA Changes Seek Redress

December 18, 2008
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The Bush administration is making the most of its waning weeks by issuing regulations that will take effect just before President-elect Barack Obama is sworn in.

Among the highest in profile are changes to a major employee leave law that has not been modified since it was enacted in 1993. In mid-November, the Department of Labor circulated rules that it said would clarify rights and obligations under the Family and Medical Leave Act.

They take effect January 16, which should prevent Congress from halting them. But Capitol Hill critics want to change them nonetheless.
The FMLA allows workers to take 12 weeks of unpaid leave for the birth or adoption of a child or to deal with a personal or family member’s ailment. The new regulations expand the law to provide 26 weeks of leave for people who care for seriously injured or ill military personnel.

The 762-page final regulation, which was the product of a two-year information-gathering process, tightens FMLA rules. It allows employers to demand recertification of a medical condition twice annually. An HR department can directly contact an employee’s health care provider.

Employees taking leave must tell their supervisors the same day or following day. Previously, notice could be delayed. Employers can deny “perfect attendance” awards to workers on FMLA leave and don’t have to grant it in increments smaller than they allow other leave.
Under the new rules, the time an employee spends in “light duty” work doesn’t count against FMLA. Also, a company must explain in writing why it is denying leave.

“Generally, this is a step in the right direction,” said Lisa Horn, manager of health care at the Society for Human Resource Management. “It should improve communication between employers and employees.”

The changes fell short of defining “serious health condition” or ironing out problems with intermittent leave.

“It’s a mixed bag for employers,” said Debra Friedman, a partner at Cozen O’Connor in Philadelphia. “The Department of Labor did not address all of the employer’s concerns or resolve them.”

While praising military leave, FMLA advocates charge the Bush administration with limiting other leave rights.

“This is no time when workers can afford to lose their jobs,” said Sharyn Tejani, senior policy counsel at the National Partnership for Women and Families.

She criticized the agency for not doing an empirical FMLA study. “You shouldn’t change regulations for the entire country based on employer complaints,” she said
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An FMLA champion on Capitol Hill is drawing Obama’s attention to the changes.

“I respectfully request that the president-elect’s transition team take a close look at how we may expeditiously redress any new regulations that undermine access to FMLA leave,” wrote Rep. Carolyn Maloney, D-New York, in a letter to Obama chief of staff Rahm Emanuel.

Maloney’s staff acknowledges that the regulations can’t be stopped. They would have to be rewritten by the Obama administration.
In the meantime, employers will have to significantly revise leave procedures.

“You’re going to have to dot all your i’s and cross your t’s in order to make certain the information you’re providing the employee vis-à-vis the new forms and new procedures is correct,” said Ellen McLaughlin, a partner at Seyfarth Shaw in Chicago.

—Mark Schoeff Jr.

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