On Thursday, the U.S. Department of Labor announced that it had submitted the first proposed changes to the FMLA regulations in a decade to the White House Office of Management and Budget for approval. The DOL declined to discuss the proposed changes pending White House review and approval.
The proposed changes are likely going to address court decisions invalidating a number of DOL FMLA regulations. As explained in a December 21, 2007 post, the DOL announced on December 10, 2007, its intention to issue proposed FMLA regulations in January 2008. The primary focus of the proposed regulations is intended to address the Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. 535 U.S. 81 (2002). There, the Supreme Court found invalid the penalty imposed by 29 CFR 825.700(a) for an employer's failure to timely notify an employee that it designated leave as FMLA qualifying absent evidence of actual prejudice to the employee. The penalty is that the leave taken does not count against the employee's 12 week entitlement. This could result in the employee receiving more than 12 weeks of FMLA leave in a year.
The DOL announced that it "intends to propose revisions to address issues raised by this and other judicial decisions."
For an excellent, albeit somewhat dated (2006), review of cases that have invalidated FMLA regulations, see http://www.protectfamilyleave.org/pdf/spencerfaneltigation080103.pdf
Comment: The stage has been set for the White House to bargain with Congress regarding changes to the FMLA. Legislation expanding the FMLA to cover leave for military service members is awaiting the President's signature. At the same time, the DOL's proposed changes to the FMLA regulations have been sent to the White House for approval. While the White House does not technically need the approval of Congress to change the FMLA regulations, it seems more than coincidental that both just happen to be at the White House at the same time.
My guess is that something will be informally worked out over the next few days. The President will initially sign the military service expansion. Sometime thereafter the DOL will issue the proposed changes to the current FMLA regulations. Of course, the deal could already be in place.
Any changes to the DOL FMLA regulations will likely to be addressed, if not duplicated, for civil service and Congressional employees. By statute, the OPM's FMLA regulations are supposed to be consistent with the DOL FMLA regulations. See 5 U.S.C. 6387. The same is true for Congressional employees.
In any event, get ready folks for some major FMLA changes!