Bush’s Lame-Duck Labor Department To Implement Onerous FMLA Rule Changes

November 17, 2008

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As the Bush administration prepares to leave office, it is giving workers one more kick in the teeth: The Department of Labor announced last week that it would implement new regulations governing the Family and Medical Leave Act (FMLA) that will make it harder for workers who are covered by the law to use the leave.

The new rules, set to take effect Jan. 16 — just four days before President Bush leaves office — would:

  • Define Serious Health Condition more narrowly;
  • Require employees to provide more medical documentation about their conditions and to provide it more often;
  • Allow employers to contact an employee’s healthcare providers without the employees’ knowledge or permission, and
  • Permit employers to request FMLA recertification every six months in conjunction with an absence, at the employee’s expense.

Employers are also being given more time to designate leave as FMLA; they will be allowed to delay granting leave requests until they are “satisfied” that the information they have received qualifies employees for FMLA absences.

The changes also will require employees to give notice of FMLA absences “as soon as possible,” while current regulations permit employees up to two days to provide such notice. The union contends this revision will give management more discretion over family and medical leave absences.

The finalized rules are nearly identical to regulations proposed earlier this year that prompted a flood of complaints from workers, union officials, and family advocates. Among the approximately 4,600 comments on the Department of Labor Web site, a majority were from APWU members.

“These onerous new rules are yet another burden the Bush administration is imposing on America’s working families,” said APWU President William Burrus. “We have fought too long and too hard for the FMLA. We will not sit idly by while a lame-duck president issues rules that favor the Chamber of Commerce at the expense of America’s workers.”

Because the new regulations are being issued so late in Bush’s term, President-Elect Barack Obama and the new Congress will have an opportunity under the Congressional Review Act to reverse them without engaging in a lengthy legislative process. “We intend to call upon the Congress and the new president to make overturning these rules a priority,” Burrus said.

The new regulations include one positive feature: A clarification of how military families can take time off to care for wounded service members. It was after Congress approved legislation extending the FMLA to military families in January that the Department of Labor proposed the revisions that are now to take effect.

The 1993 Family and Medical Leave Act allows eligible workers as much as 12 weeks of unpaid leave during any 12-month period to care for themselves or family members during illnesses or for the birth or adoption of a child.

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