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The U.S. Department of Labor's (DOL) regulatory agenda for 2007 included plans to review the FMLA regulations in light of the U.S. Supreme Court's 2002 decision in Ragsdale v Wolverine Worldwide Inc, 145 LC ¶34,457 , 535 U.S. 81, among other things. However, it seems that, at least for now, no major overhaul, or even a minor one, of the regulations will be forthcoming.
Speaking before an audience of the National Employment Law Institute's 28th Annual Conference on Developments in Employment Law, attorney Ellen McLaughlin of the law firm Seyfarth Shaw, LLP, remarked that the DOL's December 2006 request for public comments, rather than issue proposed new rules puzzled many. It was even more surprising that in June 2007, the DOL released a lengthy analysis of the more than 15,000 comments it received, highlighting particular areas of conflict.
According to the DOL's analysis (see Wages-Hours ¶30,047), employers seem to have few concerns about the use of family leave for birth or adoptions. Rather, the use of unscheduled intermittent leave for medical appointments or treatments is most troubling to employers. Proper and sufficient medical certification is another area of concern--employees believe it is too burdensome, while employers rely on it to determine if an employee truly has a serious medical condition.
Some analysts believe that the DOL will address issues regarding intermittent leave and medical certification, even if no regulatory changes are made. McLaughlin reported that one DOL official speaking at an American Bar Association event indicated that the Department has begun examining whether changes are needed to the model medical certification form.
SHRM survey results. On March 13, 2007, The National Coalition to Protect Family Leave, sponsored by the Society for Human Resource Management (SHRM) announced the results of a survey of over 600 HR professionals. The Survey questioned respondents about their application of the FMLA to employees at their companies, specifically focusing on difficulties or challenges with the law. The results of the survey revealed widespread problems applying the law in certain circumstances; for example, 80 percent of employers have problems tracking intermittent leave. Other findings include:
Nearly two-thirds of HR professionals have had problems in determining when to grant "chronic leave" under the Act.
Fifty-one percent of HR professionals have faced "significant challenges" in implementing leave.
Four out of 10 HR professionals said they had to grant FMLA requests they believed were not legitimate because of the law's regulations.
More than half (57 percent) found it somewhat or very difficult to determine if a health condition is a "serious health condition."
Forty-seven percent had difficulties administering episodic FMLA leave for employees with serious health conditions.
As a result of these findings, the coalition recommended that the DOL issue a clearer definition of what constitutes a "chronic health condition" and streamline recordkeeping if it issues new rules. It also asked that the regulations concerning "intermittent leave" be modified to allow employers to require employees to use intermittent leave in half-day increments rather than the current minimum of 15 minutes.
Ellen McLaughlin is a partner in the law firm of Seyfarth Shaw and practices from the firm's Chicago office. Her remarks were delivered at the National Employment Law Institute's 28th Annual Conference on Developments in Employment Law, held Nov. 8-9 in Chicago, Illinois.
For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.
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