Jottings By An Employer's Lawyer

Thursday, November 30, 2006

New FMLA Regulations? Not Quite, But A Start


In tomorrow's federal register the Department of Labor will be requesting input on a variety of topics on the FMLA, preliminary one supposes to providing a draft of proposed regulations. Included among the requests are a way to better define serious health condition:
• Section 825.114(c) states "[o]rdinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." Have these limitations in section 825.114(c) been rendered inoperative by the regulatory tests set forth in section 825.114(a)? • Is there a way to maintain the substantive standards of section 825.114(a) while still giving meaning to section 825.114(c) and congressional intent that minor illnesses like colds, earaches, etc., not be covered by the FMLA?
You can find a copy of the complete request for information here.

Unless my memory fails, this is a different path than the DOL took with its proposed changes to the white collar exemptions. There the department issued a proposed rule, was soon eneveloped in a huge political firestorm and changed (watered down some would say) the final rule substantially.

Perhaps seeking to avoid going down that path again, the Department has chosen to post a number of topics that it is seeking input on — without a suggested rule. The initial public comment period will end February 2nd. Although it is not uncommon for public comment periods to be extended, if the Bush administration wants to make changes on its watch, there is not going to be a lot of time, so I would plan on getting any comments in sooner rather than later.

One source for information is the National Coalition to Protect Family Leave. You can check their website for background information on the sort of changes that they would suggest.

Here's a list of the 12 substantive areas that the DOL is seeking input on:
  • Eligible Employee
  • Definition of "Serious Health Condition"
  • Definition of a "Day"
  • Substitution of Paid Leave
  • Attendance Policies
  • Different Types of FMLA Leave
  • Light Duty
  • Essential Functions
  • Waiver of Rights
  • Communication Between Employers and Their Employees
  • FMLA Leave Determinations / Medical Certifications
  • Employee Turnover and Retention


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