New FMLA Regulations Coming? DOL Wants Public Comment by February 2, 2007.
by Darrell R. VanDeusen

Here is a question you have heard before: Will the DOL ever revise its FMLA Regulations? It looks as if the issue is finally on the DOL’s radar screen. In a signal that revisions may be on the horizon, the agency announced in the December 1 Federal Register that it is requesting public comment on the FMLA and its current regulations. Comments are due to DOL by February 2, 2007.

In Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), the Supreme Court held that Section 825.700(a) of the DOL Regulations was “incompatible with the FMLA’s comprehensive remedial scheme.” 535 U.S. at 89. In response to Ragsdale and Circuit decisions criticizing or invalidating other Sections of the Regulations, the DOL first promised revisions to the Regulations in December 2002. In each subsequent Semiannual Regulatory Agenda released by the DOL it has promised that the amendments will be out “soon.”

Areas of Inquiry:

The DOL has identified 12 specific areas where it is seeking guidance from the public, but the December 1 request states that comments may address any area of the FMLA. Specific information is sought on:

1. who is an "eligible employee," including the current regulatory tests and the question of what is a "worksite;"
2. the definition of "serious health condition;"
3. the definition of "day" for purposes of both calculating leave and defining a medical condition;
4. substitution of paid leave;
5. attendance policies;
6. different types of FMLA leave, including the length of time;
7. light duty;
8. essential functions;
9. waiver of rights;
10. communication between employers and their employees;
11. FMLA leave determinations and medical certifications; and
12. employee turnover and retention.

Beyond these specific questions, DOL is looking for input on how to determine the number of people using FMLA leave, the estimated number of employees taking intermittent FMLA leave, the financial impact of intermittent leave, and whether FMLA leave has a different impact on employers depending on the size of the company.

How to Provide Comments:

Written comments should be submitted to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Electronic comments may be submitted by e-mail to whdcomments@dol.gov. Comments of 20 pages or less may be submitted by fax to (202) 693-1432.

Comments should be received by DOL no later than 5 p.m., Feb. 2, 2007.

Documents published in the Federal Register can be obtained at http://www.gpoaccess.gov/fr/index.html.

For more information on the request and for general information on the FMLA, DOL has created a Web site at http://www.dol.gov/esa/whd/fmlacomments.htm. Information is also available through the DOL's toll-free help line at 1-866-4USWAGE (1-866-487-9243).

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