On April 10, 2008, the House Subcommittee on Workforce Protections held a hearing on the FMLA that focused on proposed changes and potential areas of improvement. Chairwoman Woolsey (D-CA) expressed concerns about the Department of Labor’s proposed FMLA regulations, and endorsed two pending pieces of legislation: The Balancing Act of 2007 (H.R. 2392) and The Healthy Families Act of 2007 (H.R. 1542, S. 910).  The Balancing Act of 2007 would provide paid family medical leave, benefits for part-time workers, and additional leave for parental involvement activities. The Healthy Families Act of 2007 would require employers to provide workers with at least seven days of paid sick leave and pro-rated leave for part-time employees. 

Chante Lasco, a recent new mother, testified about the difficulty employees face when attempting to take advantage of the FMLA’s twelve weeks of guaranteed leave because the leave may be unpaid. Lasoc also shared the difficulties of returning to work only twelve weeks after giving birth, including the difficulty in finding and paying for child care for a twelve-week-old infant.

Victoria Lipnic, Assistant Secretary of the Employment Standards Administration division of the Department of Labor, spoke primarily about the Department’s proposed FMLA regulations.  Lipnic asserted that the Department currently has four main rulemaking goals: (1) to address the recently enacted military family leave provisions; (2) to update the regulations to comport with current case law; (3) to foster smoother communications among employees, employers, and health care professionals; and (4) to update and clarify specific problematic areas of the current FMLA regulations without limiting employee access to FMLA leave.

Among other revisions, the proposed rule:

• requires employees to give more advance notice of the intention to take FMLA leave;
• attempts to clarify the medical certification requirements;
• permits an employer to contact an employee’s health care provider directly for purposes of clarification and authentication of the serious health condition;
• imposes increased notice requirements on employers;
• changes the standard for determining the relevant “worksite” for coverage determination purposes in a joint employment situation;
• changes requirements regulating the interaction between FMLA leave and light duty work;
• clarifies that an employee cannot waive prospective rights but may settle claims based on past employer conduct; and
• removes categorical penalty provisions while retaining an employee’s entitlement to remedy for individualized harm.

For more complete coverage of the proposed rulemaking, please see Akin Gump’s recent Employment Alert.

Debra Ness, President of the National Partnership for Women and Families, criticized the proposed regulations. Ness claimed that the proposed changes would make it more difficult for employees to use FMLA leave because of increased notification and certification requirements.  In addition, the new rule would increase direct contact between employers and employees’ health care providers, a matter of concern for employees with serious health conditions that carry social stigma. Ness’s proposals for expanding FMLA included reducing the employer-size threshold, removing job tenure requirements for leave eligibility, extending coverage to include leave to care for all domestic partners and extended family members, and implementing a federal minimum standard of paid sick days for all employees.

Brenda Cossette testified on behalf of the Society for Human Resource Management, a professional association representing more than 225,000 HR professionals who administer FMLA leave on a daily basis. Cosette praised the FMLA generally, but warned that unintended consequences require regulatory clarification in areas not addressed by the proposed rule.  Cossette recounted common challenges HR professionals encounter, including administering unscheduled intermittent leave and interpreting the definition of a “serious health condition.”  Cossette reported that employers are facing habitual employee absenteeism or tardiness with limited tools for determining when the leave is legitimate. Furthermore, the availability of intermittent leave for chronic conditions, which allows leave to be taken in unpredictable, unscheduled, and small increments of time, poses significant challenges in the reallocation of absent employees’ work. Cossette also warned that proposals to expand FMLA without first addressing its flawed framework, including paid leave mandates, would be ill-advised.