The Department of Labor (DOL) has announced a proposed rule that would alter federal protections for workers who need to take leave to care for themselves or their families. DOL chose to pursue the rule changes after hearing complaints from industry lobbyists.

The Family and Medical Leave Act of 1993 (FMLA) allows employees to take up to 12 weeks of unpaid leave in a 12-month period without risking their pay, benefits, or position. According to DOL, employees can apply for FMLA leave "for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly-placed child; to care for a spouse, parent, son or daughter with a serious health condition; or when the employee is unable to work due to the employee's own serious health condition."

According the National Partnership for Women and Families, a nonprofit organization that works on workplace fairness issues and has expertise on FMLA, seven provisions in the proposed rule would make it more difficult for workers to take FMLA leave. The proposed rule would:

• Make it more difficult for workers to use paid vacation or personal time during FMLA leave. Because FMLA leave is unpaid, this may mean more workers will be unable to use FMLA leave time if they cannot afford to miss work.
• Require employees to notify their employers before their shift starts for unforeseeable leave except in emergency situations. Conversely, employers would have more time (five days, from the current standard of two days) to determine whether an employee will be granted FMLA leave.
• Allow employers to speak directly to an employee's health care provider after receiving permission from the employee. Currently, employers must use a medical professional as an intermediary.
• Require chronic condition sufferers to visit their doctors every six months in order to recertify their condition. Currently, employees must only visit their doctors "periodically."
• Allow employees to waive their FMLA claims without review. Currently, DOL or courts must review such claims. Because employees may not have access to legal counsel, the rule change would increase the chance that employees may waive their rights under duress or may be coerced into doing so.
• Allow employers to count FMLA leave against the attendance record of an employee. Currently, employers cannot withhold attendance rewards based on time missed under FMLA.
• Make little progress in educating workers about the benefits of FMLA. Many workers do not utilize FMLA because they are unaware of the benefits or the process for requesting leave, according to the National Partnership.

Two provisions of the proposed rule would strengthen FMLA for workers, according to the National Partnership. The proposed rule would:

• Allow employees to take "light duty" assignments without counting the time worked toward FMLA leave. Currently, light duty time is subtracted from the 12 weeks of FMLA leave allowed.
• Improve employer disclosure of FMLA policy, including notification of how much FMLA leave time an employee is being charged and written notification of why an employer finds a medical excuse insufficient and what can be done to correct it.

The proposed rule would also expand FMLA's provisions to military families. As part of the 2008 Defense Authorization Bill (P.L. 110-181), which President Bush signed into law on Jan. 28, Congress amended the FMLA to assist members of the military and their families. The legislation expands the FMLA in two significant ways: It adds a Caregiver Leave section that allows up to 26 weeks of unpaid leave for employees to provide care to a close relative who is a member of the Armed Forces undergoing outpatient treatment, recuperation, or therapy for a serious injury or illness. This provision was implemented immediately. The law also adds an Active Duty Leave section that allows up to 12 weeks of unpaid leave for employees who have an immediate family member who is on active duty or is called to active duty to serve in a military operation and who experience "any qualifying exigency." This provision does not go into effect until DOL issues final regulations. The proposed rule addresses the Active Duty Leave section by defining "any qualifying exigency."

By DOL's own admission, FMLA is working: "No employment law matters more to America's caregiving workforce than [FMLA] of 1993. Since its enactment, millions of American workers and their families have benefited from enhanced opportunities for job-protected leave…"

But business groups and industry lobbyists have been complaining about some of the FMLA's provisions for years. According to the National Partnership, "The organized business community has been pushing hard for a number of changes in the FMLA."

In December 2006, DOL solicited the public for their views on FMLA with a potential modification in mind. According to DOL's report on the comments, "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." The Department received more than 15,000 comments from public interest groups, lobbyists, businesses, academics, and the general public.

Nonetheless, DOL began working on a rule change in late 2007. DOL published the proposed rule in the Federal Register on Feb. 11.

Some of the provisions of the proposed rule that the National Partnership and others find objectionable mirror the complaints of industry lobbyists who submitted comments in response to the Department's December 2006 request. For example, the National Association of Manufacturers urged a change in the rules to allow an opportunity for "unambiguous employee authorization for the employer — not necessarily a health care provider — to make inquiries of the employee's health care provider, as needed." The Department heeded that recommendation in the proposed rule.

Other industry suggestions, such as those to narrow the definition of "serious medical condition," have not been taken up in the proposed rule.

DOL is accepting public comments on the proposed rule until April 11. Comments can be submitted here: www.regulations.gov, Docket identifier: ESA-2008-0001.