Action Alert: Department of Labor Seeks Business Comments on FMLA

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On February 11, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) on the Family and Medical Leave Act (FMLA). This is the first time in the law 15-year history that the Department is proposing revisions to the implementing regulations. This NPRM opens a 60-day public notice and comment period for all interested parties to respond by April 11, 2008. We strongly urge all Manufacturers’ Association member companies to submit comments to the DOL on this proposal.

BACKGROUND: The FMLA is a law traditionally known for allowing workers extended unpaid leave for childbirth, adoptions and serious family illness. However, recent reports demonstrate that FMLA is one of the most misunderstood federal statutes on the books.

The wide misuse of “unscheduled intermittent leave” is causing real headaches for managers and hurting businesses’ abilities to serve customers. Furthermore, loopholes and ambiguities have created a no-win situation for employers wishing to curb the law’s misuse, as well as for employees who witness their co-workers unfairly and wrongfully take advantage.

PROPOSED CHANGES:

• Tightening of notice requirements — on both sides. Employees would now have to let the employer know they need FMLA leave no later than the next day following a qualified need for the leave. Now workers can take two days before they report in. What’s more, they’ll need to follow tighter call-in procedures. For their part, employers will now have to provide notice of FMLA rights annually, but will have longer to provide designation of leave – five days instead of the current two days.

• Easing of medical certification. Under current law, employers are barred from contacting a worker’s health provider about the need for leave. The proposed changes would remove that restriction. Some employers have looked for this change so doctors have fuller information about the worker’s responsibilities and working conditions before making judgments on a worker’s need for time off.

• Continuing treatment redefined. Workers now can qualify as needing continuing treatment if they make two medical visits over any period of time — even months. The new changes would require those two visits in a 30-day period, making it more likely that there really is a serious condition present.

In addition to the above, there are further proposed changes dealing with how nonconsecutive periods of service are calculated to determine FMLA eligibility, and other matters.

SAMPLE LETTER:

As an employer in your district, I write today in strong support of the U.S. Department of Labor's (DOL) recently published proposals to restore Congress' original intentions for the Family and Medical Leave Act (FMLA). The FMLA provides terrific benefits for employees by allowing extended, unpaid leave for childbirth, adoptions and serious family illnesses. Unfortunately, in the past 15 years, this well-intentioned law has become one of the most misunderstood and costly federal statutes on the books.

Last year, the DOL released a report on a public survey related to the FMLA. Its findings spell out the need for reform: Confusing and conflicting regulations have lead to a no-win situation for employers wishing to effectively administer the law, as well as for employees who are tired of seeing co-workers unfairly take advantage. The FMLA was never intended to turn full-time jobs into part-time jobs; it was never intended to allow employees to take sporadic leave without notification to their employers. Most importantly, the FMLA was never meant to unfairly burden employers and the employees who are forced to cover the unpredictable absences of their co-workers.

(Insert information or an example of your personal concern regarding FMLA)

The DOL's recent proposal to improve the FMLA and to ensure the appropriate use of its benefits is important to my business. I believe the purpose of the DOL proposal is not to undermine or cut back on the amount of family or medical leave. Instead, it aims to fix the rules employers and employees must follow to access these important benefits. Congress should allow and encourage DOL to address these administrative loopholes. The DOL should have the ability to publicly review proposed regulatory fixes of the FMLA. By failing to change the regulations employers must follow, Congress is only protecting those who misuse the FMLA and failing those it was originally intended to help.

Thank you for your consideration.

Sincerely,

IMMEDIATE ACTION REQUESTED: Please take a moment to urge your senators and representatives to allow this much-needed regulatory work to happen. Congress must know of employers’ and employees’ concerns that can be addressed by clarifying the FMLA’s vague regulations regarding intermittent leave and closing existing administrative loopholes.

CONTACT INFORMATION:

Please call Sheila Sterrett at 814/833-3200 if you would like additional talking points or if you have any questions.