DOL Marks Two Decades of the FMLA With Finalized Rules and a Survey Report Lauding the Law's Effectiveness

11 February 2013 Labor & Employment Law Perspectives Blog

This week, the Department of Labor (DOL) marked the 20th anniversary of the passage of the Family and Medical Leave Act (FMLA) by issuing a final rule (Rule) creating two expanded protections under the FMLA. DOL further issued a report this week lauding the success of the FMLA, which political groups have used as a call for renewed advocacy for mandatory paid leave for employees.

The first area of expansion provides families of eligible veterans who have duty-related injuries or illnesses, are receiving medical treatment or therapy, and were members of the Armed Services at any point during the previous five years preceding such treatment with the ability to take job-protected leave for activities relating to care of that veteran. Previously, that eligibility had been limited to family members needing to provide care to active-duty personnel.

DOL’s second expanded protection in the Rule also clarifies application of the FMLA to airline personnel and commercial flight crews. Prior to amendments to the FMLA passed by Congress in 2010, many aviation personnel did not qualify for FMLA leave because of the unique way their work hours are counted. The Rule now establishes special eligibility requirements for flight crew members: They qualify for FMLA leave if, during the previous 12 months, they have worked or been paid for not less than 60 percent of the applicable monthly guarantee of hours they are scheduled to work and have worked or been paid for no less than 504 hours, excluding time spent commuting or paid time off such as vacation or sick time.

Perhaps more interesting than these two provisions in the Rule is the release of a survey report that DOL lauds as showing the positive impact the FMLA has had on the U.S. workforce. According to the survey report, most employers reported “little negative impact from the FMLA” and asserted that only 15 percent of covered worksites found it “somewhat difficult” or “very difficult” to comply with the FMLA’s mandates. In connection with the release of the survey report, several political groups, including those involved in the drafting of the original Family and Medical Leave Act of 1993, have taken the opportunity to claim the survey makes a compelling case to continue expansion of the FMLA and add provisions that would require employers to offer paid sick leave to workers. Whether those claims gain any political traction will remain to be seen.

Those who have experience regularly counseling employers on FMLA-related matters may raise questions regarding the survey methodology, particularly with respect to the reportedly minimal burden placed on employers by the FMLA. Experience suggests that the FMLA remains an area open to recurrent abuse, particularly with respect to intermittent leave, such that proper administration of FMLA leaves and benefits presents an ongoing challenge to many employers. Additionally, the amount of FMLA litigation that has developed since the law’s passage in 1993 suggests that the past two decades have not been the type of relatively smooth sailing as portrayed this week by political activists in response to the DOL report. Reasonable minds can certainly differ on these issues, but based on the past two decades, employers can reasonably anticipate that efforts will continue to expand the FMLA’s scope and protections, such that the dynamics impacting employee leave may very likely continue evolving during the next two decades and beyond.

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