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DOL Request Suggests Overhaul of Family, Medical Leave Rules (1)

July 16, 2020, 3:57 PMUpdated: July 16, 2020, 7:24 PM

The U.S. Labor Department signaled the potential for future changes to how it implements the Family and Medical Leave Act in a request for public input on the 1993 law, which has taken on renewed importance during the coronavirus pandemic.

The department published a request for information Thursday asking businesses and workers for comments on possible updates to the department’s rules and guidance covering the law, which provides workers with up to 12 weeks of unpaid leave per year for personal medical reasons or to care for a new child or family member. The department’s Wage and Hour Division requested comments and data “to provide a foundation for examining the effectiveness of the current regulations in meeting the statutory objectives of the FMLA.”

Specifically, the agency asked for comments addressing challenges posed by the current regulatory definition of a “serious health condition” that would qualify workers for time off under the law—either to aid their own recovery or to allow them to care for a family member. The agency also wants to know about difficulties associated with workers taking intermittent leave, noting that a 2012 employer survey of FMLA issues indicated that unplanned intermittent or episodic leave “was sometimes disruptive to the workplace.”

The WHD highlighted these issues at a time when the coronavirus pandemic has made workplace flexibility a heightened necessity. The notice framed questions that suggested a more consequential, longer-term initiative could be underway to overhaul the process by which employers consider employee leave requests.

Thursday’s request has been in the pipeline for over a year, and was sent to the White House regulatory office for review well before the outbreak of the Covid-19 pandemic. The administration previously classified the FMLA notice as being in the “prerule” stage.

Requests for information can sometimes spawn new rulemakings or updated guidance on existing regulations. But on this initiative, DOL has yet to define an ultimate goal. “The Department is also waiting to see what we receive in the comments, and then we will decide,” a DOL spokeswoman said via email, responding to Bloomberg Law’s question of whether the call for public input would lead to a proposed regulation.

The request said that feedback from the public will assist DOL in identifying topics for future compliance-assistance efforts. But it also noted that FMLA regulations were last updated in 2015 and that these rules must be reviewed regularly to ensure they reflect workplace realities.

The agency packaged its public comment request along with an announcement of new streamlined forms that it said will simplify the process for employees to request FMLA absences and for employers to coordinate their leave.

Some of the questions seek input on FMLA issues that align with concerns that White House labor policy adviser James Sherk publicized during his time at the Heritage Foundation, before he joined the administration.

Sherk in 2017 wrote an 82-page report on “unscrupulous” and “irresponsible” workers who abuse the family and medical leave law. He proposed a number of changes, including sharply limiting the “serious medical conditions” covered under the FMLA and giving companies more power to investigate whether a worker using FMLA leave really has such a condition.

He also said in the report that regulators should seek to combat misuse of FMLA benefits by restricting the situations in which workers can take intermittent leave under the law, such as when a preexisting health condition flares up.

(Updated with Labor Department response.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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