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Department of Labor to seek comments on how to improve the Family and Medical Leave Act (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.

"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.

This article provided by The Society for Human Resource Management (SHRM)

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