Jottings By An Employer's Lawyer

Monday, February 11, 2008

Initial Reactions to the New (Proposed) FMLA Regs

Apparently some folks did some reading over the weekend, as the first reactions to the Bush proposed FMLA regulations are beginning to trickle in. In early comments, two business trade organizations were tentatively pleased --

  • The National Retail Federation:

    The proposed changes to the current FMLA regulations provide additional clarity to a law that has helped millions of workers and their families," NRF Vice President for Government and Political Affairs Rob Green said. "Pending a thorough review of the proposed regulations, our initial analysis indicates that the new rules will help modernize a confusing and contradictory FMLA regulatory system that is often challenging for employees to understand and difficult for employers to administer. This long-overdue update will help restore FMLA regulations to the intent Congress had when it passed the original law 15 years ago.

  • The National Association of Manufacturers:

    We welcome the Department of Labor’s decision to address the way the Family and Medical Leave Act is applied in the workplace. Today’s action is the result of tens of thousands of comments to the federal government from both employers and employees, and it builds on a decade-long record of congressional testimony and legal decisions that reached the Supreme Court, all pointing to the practical challenges involved in granting family and medical leave. Over the course of the regulatory process, the NAM looks forward to reviewing the proposal thoroughly to ensure it upholds the benefits outlined in the law, while addressing critical administrative problems.

Not unexpectedly, Senator Hillary Clinton's campaign was not :

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

The Family and Medical Leave Act makes it possible for people to meet their responsibilities at work and at home. I have advanced a positive agenda to move our nation towards this goal. The President's proposed regulations, unfortunately, are a harmful step back.

Daniel Schwartz at the Connecticut Employment Law Report not only has a new job, but also has an initial survey of how this issue is being treated among the blogging community in his Wrapup.

And one of my Washington colleagues, Al Robinson who has long been monitoring developments in this area has pointed out that we may get some initial congressional reactions in hearings that were already scheduled to commemorate the 15th anniversary of the FMLA's passage:

  • The Children and Families Subcommittee of the Senate Health, Education, Labor and Pensions (HELP) Committee will hold a hearing on Wednesday, February 13, at 3:00pm; and

  • the Workforce Protections Subcommittee of the House Education and Labor Committee will hold its hearing on Thursday, February 14, at 10:00am.

For those who prefer a pdf link to the new regulations as opposed to the text link that was available in my Saturday posting (where you can see some early thoughts on the regs) go here. And yet another link -- an e-alert from my firm with more thoughts can be found here.

Based on the early returns, it's too early to project a winner, but I think you are safe in saying that there will be a contested battle.


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