DOL Reports on FMLA Request for Information

July 9, 2007

Opening more than 15,000 pieces of mail is an experience few of us, other than celebrities and the proverbial Santa Claus, will ever experience. That is what the DOL did in reviewing responses to its Request for Information on FMLA after the February deadline.

In June, the DOL issued a 90-page report that summarizes the feedback received from employers, employees and various other organizations, including Infinisource. While the report does not contain any proposals for regulatory changes, it does provide a starting point for a national discussion on needed FMLA changes, which the DOL describes in this way: "[n]o employment law matters more to America’s caregiving workforce."

Overall, there were three overriding reactions to FMLA:

• Employee gratitude over the availability of protected time off
• Employee desire for greater benefits, including required paid leave and coverage of more family members
• Employer frustration over managing leaves, especially those that are intermittent

• Employee Value. Most employees reported that FMLA was very valuable in balancing work-life demands, mainly when it came to caring for an ill family member, particularly as the overall population ages. Some employers are providing a greater benefit than required by law.
• Intermittent Leave. This was probably the most significant area of comment. Employees with chronic conditions generally like the current process, but employers bemoan the difficulty of managing absences and verifying that they are a result of a serious health condition. The DOL acknowledged a tension–sometimes adversarial–between employer and employee when it comes to managing intermittent leave.
• Post-Ragsdale Uncertainty. Ragsdale v. Wolverine Worldwide is the only FMLA case decided by the U.S. Supreme Court. This case struck down a DOL regulation that prohibited employers from retroactively designating time off as FMLA. Confusion exists as to whether employers are prohibited from retroactive designation if an employee relies on the employer's omission.
• Serious Health Conditions. Employer responses focused on the vagueness of this term and the fact that current interpretation does not omit minor illnesses and conditions.
• Employee FMLA Knowledge. The DOL observed that many employee responses showed a lack of general FMLA knowledge. Employers need to make sure that FMLA policies are clearly communicated to all employees.
• FMLA Statistics. Many responses contained additional data on FMLA usage, suggesting that the DOL's estimates of intermittent leave usage (1.5 million cases in 2005) are understated.

The DOL did not commit to issuing revised FMLA regulations, but areas exist where the DOL could provide additional clarification (e.g., leave designations). The DOL stressed the importance of clear communication of FMLA rights.

The report is available at: www.dol.gov/esa/whd/fmla2007report.htm. An executive summary of the report is available at: www.dol.gov/esa/whd/FMLA2007Report/ExecutiveSummary.pdf.