DOL Announces Review of Bush-Era FMLA Regulations

On December 7, 2009, the DOL announced its intention to review the new military family leave amendments to the FMLA included in the FY 2008 National Defense Authorization Act, as well as other revisions of the FMLA made the DOL in November 2009 near the close of Bush presidency.  Labor and employee organizations were highly critical of a number of changes to the existing FMLA regulations.  Those changes, which became effective on January 16, 2009, adopted, in some cases, a more stringent definition of FMLA-covered serious health conditions, allowed employers to collect more information in a medical certification in support of a serious health condition,  and permitted the employer to make direct contact with the employee's health care provider to authenticate or clarify a medical certification. among other changes.

Note that the announcement indicated that, on completion of the review, "regulatory alternatives will be developed for notice-and-comment rulemaking." The use of the affirmative "will" suggests that this is not an idle exercise by the DOL.  The DOL estimated that it would issue a notice-of proposed-rulemaking by November 2010. 

The announcement may be accessed at: http://frwebgate3.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=42978019657+0+1+0&WAISaction=retrieve 

Comment:   Given the ferocity of the criticism made by labor and employee organizations regarding the DOL changes to the existing FMLA regulations, I suspect that changes to the January 2009 FMLA regulatory revisions is a given.  It is not a question of if, but when.   DOL also needs to issue new FMLA rules to implement the recent statutory changes to the FMLA made in the 2009 National Defense Authorization Act.  

The DOL made its announcement in the Unified Agenda.  The Unified Agenda (also known as the Semiannual Regulatory Agenda), published twice a year (usually in April and October) in the Federal Register (FR), summarizes the rules and proposed rules that each Federal agency expects to issue during the next year. It is published by the Office of the Federal Register National Archives and Records Administration (NARA).