Democratic Leaders Oppose Revising FMLA Regulations

By Staff Report

Feb. 14, 2008

Democratic congressional leaders oppose regulatory changes to an employee leave law, but it’s not clear whether they will try to block them.

During and before a Senate hearing on Wednesday, February 13, the author of the 15-year-old measure, Sen. Christopher Dodd, D-Connecticut, and Sen. Edward Kennedy, D-Massachusetts, accused the Bush administration of trying to discourage workers from utilizing the law—the Family and Medical Leave Act.

Earlier this week, the Department of Labor published a 477-page proposal that would revise the FMLA for the first time since it was enacted in 1993.

Labor officials say the regulations, which they want to implement by the end of the year, would make the law more user friendly for companies and employees. They also address rules for implementing expanded leave for military families.

Democrats and FMLA advocates maintain that the regulations would undermine the law, which provides 12-weeks of unpaid leave for the birth or adoption of a child or for a worker to deal with a personal or family member’s sickness.

“A lot of these ideas seem gratuitous in many ways,” Dodd said.

He took particular exception to a proposed change that would allow employers to request a medical recertification for FMLA leave every six months.

“If you have diabetes, you have diabetes,” he said. “This is not a condition that comes and goes.”

Dodd also raised concerns about potential violation of employee privacy by allowing employers to contact directly a worker’s health care provider.

The proposals send the wrong message with the economy teetering on a recession, Kennedy said.

“When so many families are struggling, this is the worst possible time to roll back the protections of the Family and Medical Leave Act,” he said.

One way congressional Democrats could halt the regulatory process is by attaching a rider to an appropriations bill that would prevent funding for the new rules.

For now, Dodd will focus on submitting a statement during the proposal’s comment period, which lasts until April 11.

“I would hope the Department of Labor would listen to us and reject some of these regulations,” Dodd said.

Victoria Lipnic, assistant secretary of labor for the Employment Standards Administration, defended the changes.

“Without action to bring clarity and predictability for FMLA leave-takers and their employers, the department foresees employers and employees taking more adversarial approaches to leave, with workers having a legitimate need for FMLA leave being hurt the most,” she said in her prepared hearing statement.

The agency’s proposal doesn’t overhaul FMLA; it tweaks several areas in response to numerous court cases and to a request for information last year that generated 15,000 comments.

In that survey, employers indicated that the family leave part of the law was working well but they were vexed by disruptions to their operations caused by medical leave abuses. The areas that caused the most concern were serious health conditions and intermittent leave.

The new rules didn’t change the definition of a serious health condition, but they do require that two visits to a doctor for such an ailment occur within 30 days of an incapacitation.

The proposal does not amend the minimum increment for intermittent leave, which can be a few hours, but its does require employees to notify employers of an FMLA absence “prior to the start of their shift.”

Currently, about 46 percent of workers take FMLA leave without giving prior notice, according to a survey by the Society for Human Resource Management.

The Labor Department didn’t tackle any major changes, according to Jim Brown, vice president of FMLASource, an affiliate of ComPsych in Chicago.

“They tried to stay away from bigger issues, and rightly so,” he said. “It’s not up to the Department of Labor to create law. From a practical standpoint, there isn’t a lot of substance. And the substance that’s there isn’t final.”

That outcome likely disappoints the corporate world.

“From an employer’s perspective, progress has been made,” said Kevin Shaughnessy, a partner at Baker Hostettler in Orlando. “It’s perhaps not as much as [they] wanted.”

—Mark Schoeff Jr.

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