Bush Changes to Employee Leave among First Midnight Rules

The Department of Labor has finalized a new rule that will affect the way workers take medical and family leave. It is among the first of many rules the Bush administration is expected to cement in the coming weeks.

The Family and Medical Leave Act of 1993 (FMLA) allows employees to take up to 12 weeks of unpaid leave each year to care for themselves or a family member without risking their pay, benefits, or position. The Department of Labor estimates 7 million workers took FMLA leave a combined 10.5 million times in 2007.

The rule, published in the Federal Register Nov. 17, will make it more difficult for employees to use paid leave when taking FMLA leave. Because FMLA leave is unpaid, employees often attempt to use paid leave, such as paid vacation time, to avoid disruptions in their pay.

Other changes require workers to provide greater advance notice of FMLA leave claims and give employers more time to respond. The changes require employees to give advanced notice in a way that "compl[ies] with the employer's usual procedures for calling in and requesting leave, except where unusual circumstances exist." Employers will be able to delay or deny FMLA leave claims if the employee does not comply. The rule also gives employers five days to respond to leave claims. Currently, employers must respond within two days.

The Labor Department backed away from a controversial earlier proposal, which would have allowed an employee's direct supervisor to speak directly to that employee's health care provider. However, the rule change will allow human resource professionals to contact health care providers.

Worker advocates criticized the department for those changes and say the revisions make it more difficult for workers to take leave. Debra Ness, president of the National Partnership for Women and Families, said, "The new FMLA regulations for workers take us in the wrong direction, and are harmful and unnecessary."

John Sweeney, president of the AFL-CIO, said, "Given the worsening economic situation facing families, we should be talking about how to expand successful laws like the FMLA to provide workers more job security and flexibility to deal with urgent family situations, not less."

The National Association of Manufacturers (NAM), a group that lobbies for business interests, said the rule would "provide greater clarity and understanding." NAM asked the Labor Department for certain changes to the FMLA, including direct employer access to employee health care providers.

A part of the rule expands family and medical leave protection for military families and is being roundly lauded. Responding to a mandate from Congress signed into law in January, the rule will grant employees up to 26 weeks of leave per year to care for a family member injured during military service. Ness said expanding FMLA leave for military families will "help ease the strain of a family member's deployment."

The rule is one of many the Bush administration is expected to finalize in its waning days. Presidential administrations typically increase regulatory activity near the end of their tenures in order to ensure their priorities are in place before a new president takes over.

Unlike some other controversial rules, the changes to the FMLA have been in development for some time. The Labor Department first solicited public input on a rule change in December 2006 and officially proposed the rule on Feb. 11, 2008.

The administration appears to have worked to assure the rule is cemented in place by the time Bush leaves office. Because the Labor Department expects the FMLA rule to have an annual economic impact of more than $100 million, the agency is required by law to wait at least 60 days before making the rule effective. The rule is set to become effective Jan. 16, 2009.

White House officials have pushed agencies to finish their rules by early or mid-November. In May, White House Chief of Staff Josh Bolten issued a memo instructing agencies to finalize rules by Nov. 1, absent "extraordinary circumstances." That deadline has slipped, but many agencies are attempting to finish their work as quickly as possible.

The Clinton administration published many rules in the Federal Register in January 2001, just days before leaving office. Because those rules were not yet effective, the incoming president, George W. Bush, took a second look at those rules and suspended many of them. Although Bush's move was of questionable legality, it was never challenged in court.

The FMLA rule will take effect just four days before Bush leaves office, thereby making it extremely difficult for Barack Obama to impact the rule in any way once he takes office.

Other rules that have already been finalized and are set to become effective by Jan. 20 include:

  • A rule to allow oil shale development, an environmentally intrusive process, in Western states
  • A rule to cut low-income citizens' access to health care under Medicaid's outpatient services programs
  • A rule redefining solid waste and removing existing requirements that certain hazardous materials be disposed of in environmentally sensitive ways
  • A rule allowing truck drivers to drive up to 11 consecutive hours and setting the required rest time at only 34 hours


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