Employer Groups, Employee Advocates Respond To FMLA Rule Changes 

Stakeholders on all sides responded swiftly to the release by the Department of Labor of long-anticipated revisions to the agency’s Family and Medical Leave Act regulations. Employer organizations offered measured support of the new FMLA rules, while urging further changes are still needed. In contrast, employee groups generally criticized the revisions —but they did react favorably to provisions implementing enhanced rights for military families.

“New regulations implementing the Family and Medical Leave Act (FMLA) will provide additional leave for military families, while providing better guidance for both employees and employers to ensure the law is working as Congress intended,” according to the National Coalition to Protect Family Leave, an employer group that had advocated for FMLA rule reform.

“This landmark legislation has benefited millions of Americans and their families. After 15 years, it was clearly time for a comprehensive review of the regulations,” said Lisa Horn, National Coalition chair. “Based on our initial review, we are confident the new rules will support our military families, protect all of FMLA’s important benefits and should give employers additional clarity that they need to implement the statute effectively.”

The Coalition said the new regulations will help to clear up regulatory confusion, which the organization believes has made the FMLA “difficult for employees to understand and unworkable for employers to administer.”

“The FMLA was never intended to turn full-time jobs into part-time jobs, to allow employees to take sporadic leave without any notification to employers, or to unfairly burden colleagues forced to cover the unpredictable absences of their co-workers,” said Horn. “This rule simply restores the balance Congress intended between employers’ needs for employees, and employees’ need for time to attend to important family and medical issues.”

The Coalition noted it would continue to push for additional improvements, however, especially regarding the use of unscheduled, intermittent leave, which the organization says “threatens the work environment for millions of legitimate users of FMLA leave.”

The Society for Human Resource Management (SHRM) was the leading organization in the National Coalition’s FMLA reform efforts. The human resources group issued its own, largely positive reaction to the rule change. “SHRM expects that changes by the Department of Labor to the Family and Medical Leave Act [regulations] will provide much needed clarity to the rules, allowing for smoother implementation in the workplace,” said China Miner Gorman, SHRM chief operating officer. “HR professionals welcome these new rules, especially the added support for our nation’s military families, because they will restore the balance intended by Congress between employers’ needs for employees, and employees’ need for time to attend to important family and medical issues.”

“This landmark piece of legislation has presented challenges in the workplace due to vague and confusing regulations which have allowed for misuse of leave, unfairly burdening colleagues forced to cover the unpredictable absences of their co-workers. While additional improvements are still needed, this rule strikes the right balance, preserving the Act’s critical benefits for employees and providing HR professionals and the organizations they support with greater clarity as they implement this law.”

“Bad news for workers,” was how the National Partnership for Women and Families (NPWF) tersely summed up the new regulations. Yet it’s “mostly good news for military families,” added NPWF president Debra L. Ness, in a prepared statement. “This is the first-ever expansion of the FMLA, but we hope and expect that it will not be the last.”

“We are delighted that military families will finally get some of the additional support they need and deserve,” Ness said. “The National Partnership fought hard to expand the FMLA to extend unpaid family and medical leave for up to six months for the families of wounded military personnel, and to allow military families to use FMLA leave to help ease the strain of a family member’s deployment.

“With these regulations in place, military families should be able to use the leave they need when they need it. While we would have liked the regulations to allow regular active duty military family members to use FMLA leave while a servicemember is deployed, these measures still can make a real difference for families that have made great sacrifices and are under enormous stress. It is welcome and badly needed.”

“However, the new FMLA regulations for workers take us in the wrong direction, and are harmful and unnecessary,” Ness added. “They will restrict access to protections workers have relied on for 15 years... Put simply, the Bush Administration is making it more difficult for employees to take FMLA leave.”

According to the National Partnership, under the newly released FMLA regulations:

1. Employers will have more direct access to the health information of workers and their family members, jeopardizing their medical privacy.
2. Workers will have less time to give notice of their need for leave, while employers will have more time to let them know whether the request for leave has been approved making it harder for workers to access FMLA leave.
3. Workers will have more requirements regarding ‘fitness for duty’ and more procedures to follow when requesting FMLA leave. This will make it easier for employers to delay or deny their leave.
4. It will be more difficult for workers to use their paid leave (such as paid vacation) while on FMLA leave, making it impossible for some workers to take FMLA leave at all.

“We should expand the FMLA so more workers can take leave for more reasons, and so those who can’t afford to miss a paycheck can take the leave they need to care for a family member or recover from their own illness,” Ness urged.

“We will ask the Obama Administration and the next Congress to undo the damage caused by these harmful regulations, as well as to expand the FMLA.”

So too, the AFL-CIO offered praise of the new military family protections while criticizing the remaining changes. “While the regulations implementing the new FMLA provisions on military family leave are largely viewed as a positive step, the Administration could have been more generous, and there is still work to be done to make sure that military families get the help they need,” said AFL-CIO president John Sweeney. On the whole, however, Sweeney was largely critical, noting, “the other revisions would generally restrict workers’ ability to access paid leave without putting their jobs at risk.”

“Since the FMLA’s inception in 1993, workers have taken the leave they needed more than 100 million times, making it one of the most successful pro-worker laws in history,” Sweeney said. “Today’s eleventh-hour move by the Bush Administration to weaken the Family and Medical Leave Act is another slap in the face to working families who are struggling just to get by in the midst of an unprecedented economic crisis.”

Reprinted with permission. © CCH
(Submitted 11/17/2008)

Identified as landmark legislation, new FMLA rules are intended to clear up regulatory confusion and will provide additional leave for military families.