Expansion of the Family Medical Leave Act

Written by Robert G. Brody on May 15, 2009
 
Sixteen years ago, President Clinton signed the Family and Medical Leave Act (FMLA) into law. Now, President Obama may be given the choice to sign legislation which would expand this law based on two bills introduced to the House of Representatives.

The first bill, introduced by Representative Shea-Proter, would remove various Department of Labor regulations which have effectively limited the application of the FMLA during the Bush Administration describes her proposed changes as:

• restore protections that prevent an employer from forcing an employee to use more FMLA leave than is medically necessary;
• restore limitations placed on the use of accrued paid leave while a worker is on FMLA leave;
• restore the prohibition on denying attendance bonuses to employees who take FMLA leave;
• restore protections that prohibit the waiving of an employee’s FMLA rights without review and approval by DOL or the courts;
• restoring protections that prohibit an employer from approving or denying FMLA leave based on compliance or noncompliance with employer leave request policies;
• directing the Labor Secretary to revise the 2008 regulations to revisit “the new, burdensome treatment and recertification timelines” imposed by the previous Labor Department leadership; and
• directing the Labor Secretary to revise the medical certification template to include the definition of a “serious health condition.”

The second bill is the Family and Medical Leave Inclusion Act which would permit leave to care for domestic partners, children of domestic partners, same-sex spouse, parent-in-laws, adult children, siblings and grandparents if there is a serious health condition.

If these bills pass, companies across the nation will need to revise their current policies and procedures for authorizing FMLA leaves. More significantly, businesses will have to prepare for more employee use of these laws. While these changes are significant, they remain limited because the FMLA still only provides unpaid leave. The bigger issue is will the state or federal laws be amended to provide paid leave under certain circumstances. A few states have done this in limited circumstances and bills continue to be proposed allowing this. If such legislation passes, a geometric increase in the use of the FMLA will be seen. This will truly redesign the playing filed.

Brody and Associates regularly advises management on complying with state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or (203) 965-0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More