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Department of Labor Releases Comments on FMLA Regulations: No New Proposed Rules Yet

July 05, 2007

On December 1, 2006, the Department of Labor (DoL) requested information for its “consideration and review of the Department’s administration of the [Family and Medical Leave Act] and implementing regulations.” This request for information was prompted by comments from stakeholder meetings, Supreme Court rulings, the DoL’s experience with the law, and public input at congressional hearings. The DoL requested specific information and comment on numerous topics, including: eligible employees; definition of serious health condition; substitution of paid leave; attendance policies; essential functions; waiver of rights; and employee turnover and retention. The DoL was particularly interested in receiving comments on intermittent leave.

The DoL received a staggering number of comments on the current state of FMLA regulations: More than 15,000 people responded to the request. On June 28, 2007, the DoL released an extensive compilation of those comments, which included the following conclusion from the DoL:

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. There are differing views on whether every provision of the law is being administered in accordance with the statute and with congressional intent. It is also evident from the comments that the FMLA has produced some unanticipated consequences in the workplace for both employees and employers.
Where the DoL will go from here is unsettled. The compilation only notes that such a large amount of information would normally be released with the new proposed regulations. This release, however, did not contain those new proposed regulations. It is unclear from the DoL’s comments whether this report will lead to proposed regulations or whether it is simply fodder for more debate over the application of FMLA.

Comments on the regulations can be found at: http://tinyurl.com/326vu2

For more information, contact Tom O’Day of Godfrey & Kahn’s Labor and Employment Practice Group, at 414-287-9523 or today@gklaw.com.

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