New FMLA Regs on Tap? Oh, and NEW Forms Are Here

Darrell VanDeusen
Darrell VanDeusen

The U.S. Department of Labor published a request for information on July 16, 2020, seeking comments on possible revisions to the DOL’s FMLA regulations.   If you are an employer interested in submitting comments to the DOL, we can help you do that.  Just let us know.  Submissions are due on or before September 15, 2020.

The notice states that “the Department seeks input from employers and employees on the current FMLA regulations, specifically:

  • What would employees like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?
  • What would employers like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?”

So that’s helpful.   Boring a bit deeper, DOL wants comments addressing challenges posed by (1) the current regulatory definition of a “serious health condition;”   (2) workers taking intermittent leave; (3) the FMLA’s notice rules; and (4) the medical certification process.

Although framed as a worthwhile endeavor given the COVID-19 pandemic, the questions look alot like there is a longer term plan for review and revision of the regulations.  In fact, the idea has been in the White House pipeline for about one year. 

For those of you who may not be familiar with the FMLA’s regulatory history, here’s a quick review.  The FMLA was the first bill signed into law when President Clinton took office in 1993.  The DOL’s FMLA regulations came under attack almost immediately after they were first promulgated in 1995, with claims that the Clinton DOL far exceeded Congressional intent with its interpretation of many parts of the Act. The Supreme Court, in Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002) rejected one of the regulations. Changes were made to the FMLA regulations at the end of the Bush administration in 2009, with additional fine tuning by the Obama administration’s DOL in 2013.  A change to the definition of spouse was made in 2015.    

At first, Wage and Hour Opinion Letters helped explain DOL views.  But the Obama administration stopped those, and moved to Administrator Interpretations on broader issues that were not inspired by public requests.  With the return to Wage and Hour Opinion Letters at the beginning of the Trump administration, DOL has also issued six FMLA related letters since 2018.    

Finally, DOL announced in its request for comment new “streamlined forms” that it says will simplify the process for employees to request FMLA absences and for employers to coordinate their leave.  Employers should start using those forms immediately.  They can be found here.     

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