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January 25, 2008
New FMLA Rules Could Be Proposed Soon

The Department of Labor has sent a proposal for new Family and Medical Leave Act (FMLA) regulations to the Office of Management and Budget (OMB) for approval, according to media reports.

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If the OMB approves the proposal, the department would publish it in the Federal Register for public comment.

The New York Times is reporting that department officials are saying the proposed changes would be modest but clarify some of the FMLA issues that give employer headaches, such as medical certification and notice for leave taken under the act.

For years, employers have been lobbying for changes to FMLA rules and waiting for the department to publish revised regulations. The department has yet to do so.

In December 2006, the department did publish a Request for Information, seeking comments about on a series of questions covering intermittent FMLA leave, the definition of "eligible employee" under FMLA, the definition of "serious health condition" under FMLA, leave determinations/medical certifications, and other FMLA topics.

The department released a report in June 2007 based on the more than 15,000 comments it received, saying the comments highlight that unscheduled intermittent leave is the single most serious area of friction between employers and workers.

Congress recently approved legislation that would amend the Family and Medical Leave Act to allow eligible employees to use leave in certain circumstances when their spouse, child, or parent is called for active duty in the military. The legislation is included in the National Defense Authorization Act for Fiscal Year 2008 (H.R.4986), which President Bush is expected to sign.

One FMLA-related provision in the legislation would allow employees to take leave "because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation."

Another provision would amend FMLA to give more leave to employees whose family members are injured while serving in the military.

The provision reads: "An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period."

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