Federal Legislative Action Alert – April 2012

DISCLAIMER: The following does not represent the position of the Wisconsin SHRM State Council. However, we felt it important to make you aware of National SHRM’s advocacy alert so you can take action if you choose.

YOUR ASSISTANCE IS NEEDED! The U.S. Department of Labor (DOL) recently issued a proposed rule making various changes to the regulations implementing the Family and Medical Leave Act (FMLA) and is accepting comments on these changes. Some of these changes were required by statutory changes enacted by Congress, while others are not required by changes in the FLMA. SHRM and the HR community played an active role in the most recent review and update of the FMLA rules and are concerned about DOL’s attempt to roll back some of the employer-supported provisions in this rulemaking.

Please Take This Action:
Please submit a comment to DOL via the Regulations.gov website by April 16, 2012. The process to follow for submitting a comment, along with some suggested text, appears at the end of this alert.


The proposed rule makes statutorily-required changes to the family military leave sections of the FMLA as well as flight crew FMLA eligibility. In addition to other changes, the proposed rule seeks to change or eliminate the “increments of leave” provision and the “physical impossibility” provision as described below:

Calculation of Increments of FMLA Leave
DOL proposes to delete a provision that was added to the FMLA regulations in 2009 with support of the employer community, which allows employers to utilize different increments of FMLA leave at different times of the day under certain circumstances. Before the regulations were changed in 2009, employers were required to track intermittent or reduced schedule FMLA leave in the smallest increments of time used by their payroll systems but not greater than one hour.

In 2009, the Department amended the regulations to allow employers to track intermittent or reduced scheduled leave in the shortest period of time that the employer used to account for other forms of leave so long as it was not greater than one hour. For instance, if the employer required employees to exhaust sick or vacation leave in one-hour increments, they also could require employees to exhaust FMLA leave in one-hour increments. The proposed rule calls into question this flexibility and, once again, will state that an employer may not require an employee to take more leave than is necessary, such as to address the circumstances that caused the need for leave. In addition, the employer would be required to count the leave using the shortest increment used for any other type of leave.

Physical Impossibility

DOL also raises serious, yet unwarranted, reservations about the physical impossibility provision which was added in the 2008 final rule after the Department evaluated its requested comments both pro and con. As the Department noted in 2009, one major motivating consideration for including this provision in the current regulations was to protect employees against the risk of disciplinary action in situations where a unique worksite or work environment resulted in an employee’s absence from work that exceeded the employee’s need for a short FMLA-protected absence. In the proposed rule, the Department expresses concern “that this provision may be being applied more broadly than intended.” DOL has proposed additional language for this section and stated that is it considering deleting the provision in its entirety.

Military Leave

The proposed rule refines the definitions of what qualifies as a serious illness or injury for recent veterans entitling family members to caregiver leave, something that was not previously defined. It also allows for medical certifications from health care providers who are not affiliated with the military or the Department of Veterans Affairs. The proposal further increases the amount of time an eligible employee may take to spend time with his/her covered family member during the service member’s rest and recuperation leave from up to 5 days to up to 15 days.

Airline Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA), enacted in 2009, ensures that more employees are eligible for FMLA leave. AFCTCA provides that the hours that flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.

Process for Comment Submission

Submit your comment by visiting HERE to access the Regulations.gov website. On this website, you should type your information into the form provided, copy and paste the comment below into the box on the right, fill in the security code when prompted, and click the SUBMIT button to file your comment with DOL. Please feel free to edit and revise the proposed text (below) to incorporate your own thoughts and experience.

Note: It is difficult for SHRM to track the total number of submissions from SHRM members on the Regulations.gov website. So that we can accurately determine the number of SHRM members submitting comments, please email us at regulations@shrm.org and let us know that you submitted comments on the FMLA!

Suggested Comment Language

I am writing as a member of the Society for Human Resource Management to comment on the Department’s notice of proposed rulemaking on the Family and Medical Leave Act (FMLA).

HR professionals are responsible for administering benefit policies, including FMLA leave. On a daily basis, HR professionals must determine whether or not an employee is entitled to FMLA leave and must track an employee’s leave. In addition, HR is tasked with determining how to maintain a satisfied and productive workforce while the employee is on a FMLA leave-related absence. I am concerned that DOL is proposing to undo two improvements, added in the last FMLA rulemaking, strongly supported by the HR community.

This proposal changes the way employers would track FMLA leave when an employee uses intermittent or reduced schedule leave, eliminating an employer’s limited flexibility to utilize different increments of FMLA leave at different times of the day or shift. I believe the existing provision is important for the ease in implementing FMLA leave. It helps dissuade employees who use their intermittent leave to sidestep their employer’s attendance policies – to avoid disciplinary action for arriving late to work – and encourages employees to be more selective about when they take their leave.

DOL also proposes changes to section 825.205(a)(2) addressing situations where it is physically impossible for the employee to return to work, signaling that the agency may eliminate this provision altogether. I urge DOL to keep the physical impossibility provision. This provision is limited in its application and protects employees who only require a short increment of FMLA leave, but must miss additional time from work because it is physically impossible for them to return to work once the need for leave is addressed.

I urge DOL to clarify these provisions, rather than eliminate them.

Should you have any questions regarding this proposed rulemaking to the FMLA implementing regulations, please contact Nancy Hammer, SHRM’s Senior Government Affairs Policy Counsel at nancy.hammer@shrm.org.

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