DOL Revising Family Leave Act Today

Is the U.S. Department of Labor starting to roll out a series of rules that will enrage unions but satisfy employers, thus signaling the twilight of George W. Bush's presidency? Today's proposed update of DOL's regulations under the 15-year-old Family and Medical Leave Act may be a sign, just as OSHA's ergonomics standard signaled Bill Clinton's presidency was ending -- and we know how that turned out. (Congress repealed the ergo standard in early 2001, with Bush signing the bill that killed it.)

DOL received 15,000 comments when it asked stakeholders to comment on FMLA about a year ago. The comments were poles apart, with employer groups saying FMLA leave is abused and employee representatives saying they aren't allowed to use it as freely as they should be. DOL has not explained how it dealt with the comments, but it announced last Friday that today's changes include revised employee notice rules and a new section about leave for some military families.

The department's proposal (http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/E8-2062.htm) is likely to satisfy employee groups more than employer groups because DOL is not substantively changing some of the most troublesome terms (such as the six definitions of "serious health condition"). It does propose to create a single section to address substance abuse, now addressed in two different sections of the regulations, and also a comprehensive section that addresses FMLA rights and responsibilities related to pregnancy and birth of a child, now addressed in several sections.

"This proposal preserves workers' family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace. It also implements a law President Bush recently signed to extend family and medical leave to families of America's soldiers who are suffering serious illness or injury," said Victoria A. Lipnic, assistant secretary for DOL's Employment Standards Administration. "It's time to update these regulations to reflect court decisions, clear up ambiguities, and address issues that weren't contemplated when the regulations were first issued in 1995. This proposal is the result of a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department's experience in administering and enforcing the law."

Lipnic was nominated to her position by Bush in January 2002. ESA is DOL's largest agency, consisting of the Wage and Hour Division, the Office of Federal Contract Compliance Programs, the Office of Labor-Management Standards, and the Office of Workers' Compensation Programs.

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