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News & Analysis | REG•WATCH Blog | Press Room
Friday, March 07, 2008
Bush Administration to Alter Employee Leave Protections
The Department of Labor (DOL) has announced a proposed rule that would alter federal protections for workers who need to take leave to care for themselves or their families. DOL chose to pursue the rule changes after hearing complaints from industry lobbyists.
The Family and Medical Leave Act of 1993 (FMLA) allows employees to take up to 12 weeks of unpaid leave in a 12-month period without risking their pay, benefits, or position. According to DOL, employees can apply for FMLA leave "for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly-placed child; to care for a spouse, parent, son or daughter with a serious health condition; or when the employee is unable to work due to the employee's own serious health condition."
According the National Partnership for Women and Families, a nonprofit organization that works on workplace fairness issues and has expertise on FMLA, several provisions in the proposed rule would make it more difficult for workers to take FMLA leave.
Among other things, the proposed rule would allow employers to speak directly to an employee's health care provider after receiving permission from the employee. Currently, employers must use a medical professional as an intermediary.
The rule would also require chronic condition sufferers to visit their doctors every six months in order to recertify their condition. Currently, employees must only visit their doctors "periodically."
By DOL's own admission, FMLA is working: "No employment law matters more to America's caregiving workforce than [FMLA] of 1993. Since its enactment, millions of American workers and their families have benefited from enhanced opportunities for job-protected leave…"
But business groups and industry lobbyists have been complaining about some of the FMLA's provisions for years. According to the National Partnership, "The organized business community has been pushing hard for a number of changes in the FMLA."
In December 2006, DOL solicited the public for their views on FMLA with a potential modification in mind. According to DOL's report on the comments, "There is broad consensus that family and medical leave is good for workers and their families, is in the public interest, and is good workplace policy." The Department received more than 15,000 comments from public interest groups, lobbyists, businesses, academics, and the general public.
Nonetheless, DOL began working on a rule change in late 2007. DOL published the proposed rule in the Federal Register on Feb. 11.
Some of the provisions of the proposed rule that the National Partnership and others find objectionable mirror the complaints of industry lobbyists who submitted comments in response to the Department's December 2006 request. For example, the National Association of Manufacturers urged a change in the rules to allow an opportunity for "unambiguous employee authorization for the employer — not necessarily a health care provider — to make inquiries of the employee's health care provider, as needed." The Department heeded that recommendation in the proposed rule.
Other industry suggestions, such as those to narrow the definition of "serious medical condition," have not been taken up in the proposed rule.
DOL is accepting public comments on the proposed rule until April 11. Comments can be submitted here: www.regulations.gov, Docket identifier: ESA-2008-0001.
Posted by Matt Madia
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