Today the U.S. Department of Labor asked for public comments on all areas of the DOL FMLA regulations, although the DOL identified 12 areas special of interest. The request, which was published in the Federal Register today, could lead to the first significant overhaul of the the DOL's 13-year old FMLA implementing regulations.
According to Victoria Lipnic, Assistant Secretary for the Department of Labor's Employment Standards Administration, "the department has had the FMLA on its regulatory agenda for a number of years." She continued, "We've realized we need some fresh information and fresh thinking on the issues that have been developed over nearly a dozen years since the regulations were implemented. We'd like more input from the public, which is why we put our the request for information."
The announcement cited several factors for soliciting public comment: (1) rulings of the U.S. Supreme Court and other federal courts over the past twelve years invalidating some FMLA regulations and struggling to interpret others; (2) the Department of Labor's own struggles in administering the law; (3) public input in numerous Congressional hearings and public comments filed with the Office of Management and Budget in connection with three annual reports to Congress regarding the Costs and Benefits of Federal regulation; and (4) the effect of other legislative and regulatory changes, such as HIPPA and the ADA.
The Department's solicitation of public comment has long been anticipated since the United States Supreme Court's decision in Ragsdale v. World Wide, Inc. 535 U.S. 81 (2002). In its first case involving the FMLA, the Court ruled that the penalty provision in 29 CFR 825.700(a), which states "[i]f an employee takes ... leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's leave entitlement[,]" was invalid because in some circumstances it requires employers to provide leave to employees beyond the 12-week statutory guarantee. Since that decision, the DOL has stated on several occasions over the years that it planned on reviewing the DOL's FMLA regulations.
Although its solicitation is for comment on any DOL regulations, the DOL announcement identifies 12 specific areas of interest:
- employee eligibility;
- the definition of a "serious health condition;"
- The definition of a "day" for purposes of both calculating leave and defining a medical condition;
- substitution of paid leave, including the interaction with an employer's normal leave policies;
- attendance policies;
- the impact on employers of scheduled vs. unscheduled leave and work coverage while an employee is on leave;
- light duty
- essential functions and the effect of an employer's medication of job duties to meet an employee's limitations;
- waiver of rights;
- Notification of FMLA rights and responsibilities;
- FMLA leave determination and medical certification issues; and
- employee turnover and retention.
The DOL also solicited comments addressing how to statistically determine FMLA usage, the financial impact of intermittent FMLA leave, and whether that impact changes depending on an employer's size.
Written comments should be submitted to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3501, 200 Constitution Avenue, NW, Washington D.C. 20210. Comments may be submitted by e-mail to [email protected]. Comments of 20 pages or less may be submitted by fax machine to (202) 693-1432, which is not a toll-free number. Comments must be received by 5 p.m. Eastern Standard Time, Friday, February 2, 2007.
The DOL has launched a website on the issue at: http://www.dol.gov/esa/whd/fmlacomments.htm
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