DOL to Seek Comments on Improving the FMLA

 

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The Department of Labor (DOL) plans to seek comments on how to improve the Family and Medical Leave Act (FMLA) to better protect workers and reduce administrative burdens on employers. A request for information is expected by April 2020.

The FMLA yields the greatest number of questions to the Society for Human Resource Management's (SHRM's) HR Knowledge Center. "There are a number of improvements that would enhance [the act's] implementation, and we look forward to working with DOL through this rulemaking," said Nancy Hammer, SHRM's vice president of regulatory and judicial engagement.

The Equal Employment Opportunity Commission (EEOC) and other federal agencies also outlined their priorities in the Spring 2019 regulatory agenda. The agencies are required to publish an agenda twice a year that lists all the regulations they expect to actively consider for promulgation, proposal and review during the next one-year period. The lists are estimates, though, and priorities can change.

FMLA Request for Information

Businesses with at least 50 employees must provide up to 12 weeks of unpaid leave a year to eligible workers to treat their own illness, to care for a sick relative or for baby bonding. Workers also may be eligible to use FMLA leave when a family member is deployed by the military. And certain eligible employees may take up to 26 weeks of leave in a year to care for an ill or injured military servicemember.

[SHRM members-only toolkit: Managing Family and Medical Leave]

"The FMLA can present a minefield for employers to navigate," said Jennifer Betts, an attorney with Ogletree Deakins in Pittsburgh. An employer may be investigated by the DOL or face a lawsuit in federal court if it doesn't precisely comply with the regulatory requirements, she said.

Managers need to be trained to notify HR whenever an employee requests time off that may qualify for FMLA leave. And HR must provide notices to workers and track leave, which can be a daunting task if employees take leave intermittently rather than all at once.

Adding to the complexity, FMLA leave can run concurrently with other federal, state and local leave laws. "Even if the employer is in compliance with the FMLA, other laws such as the Americans with Disabilities Act and state and local laws must also be considered," said Román Hernández, an attorney with Troutman Sanders in Portland, Ore.

Thus, the DOL "will solicit comments on ways to improve its regulations under the FMLA to … better protect and suit the needs of workers … and … reduce administrative and compliance burdens on employers," according to the regulatory agenda.

Employers may want to offer suggestions on how to streamline and simplify the regulatory requirements for FMLA administration and how to enhance employers' ability to police and avoid FMLA abuse, Betts said.  

In the meantime, employers may want to review their practices. They should keep exact records of FMLA leave, Hernández said.

Employers should have a well-written policy regarding leaves of absence, noted Tamara Devitt, an attorney with Haynes and Boone in Costa Mesa and Palo Alto, Calif. Communicating with the employee about his or her leave status is important, she added. 

Other Employment Issues

Here are some additional priorities that employers should note from the DOL, EEOC and other federal agencies:

  • The DOL didn't say when it will finalize the anticipated overtime rule, which would raise the salary threshold for the Fair Labor Standards Act (FLSA) white-collar exemptions to $35,308. The department didn't provide a timeline for other critical wage and hour updates either, such as the proposed joint-employer rule, which would narrow the FLSA's definition of "joint employer," and a change to the definition of the "regular rate" of pay that is used to calculate overtime premiums.
  • The DOL may issue a proposed rule in June on apprenticeship programs. In a 2017 executive order, President Donald Trump said that expanding apprenticeships and "reforming ineffective education and workforce development programs" will help unemployed Americans gain relevant work experience and skills. The DOL's proposal would expand on the executive order.
  • The Occupational Safety and Health Administration (OSHA) said in 2018 that its regulations don't prohibit post-incident drug testing or safety incentive programs. OSHA plans to issue a proposed regulation by September 2020 that would memorialize its position on such programs.
  • Employers may have to wait until December to get a proposed rule from the EEOC on when they can impose penalties or rewards to encourage employees to disclose medical information in health risk assessments. The EEOC initially planned to issue proposed regulations on employer wellness plans in January but delayed until June. According to the regulatory agenda, however, the EEOC now expects to issue a notice of proposed rulemaking by December.
  • U.S. Citizenship and Immigration Services plans to charge employers a fee for H-1B visa registrations. Employers can expect a notice of proposed rulemaking in July.
  • The National Labor Relations Board plans to "engage in rulemaking to establish the standard for determining whether students who perform services at a private college or university in connection with their studies are employees" and eligible to join a union under the National Labor Relations Act. The board also plans to revise representation election regulations and establish standards for when union representatives may access an employer's private property.  

[Visit SHRM's resource center for the Family and Medical Leave Act.]

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