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Washington Update

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SHRM submitted comments to the Department of Labor’s Wage and Hour Division in response to the Department’s proposal to implement amendments to the Family and Medical Leave Act of 1993 (FMLA) made when Congress enacted the 2010 National Defense Authorization Act and the Airline Flight Crew Technical Corrections Act of 2010.

In addition to making changes required by these statutes, the Department’s proposed rulemaking made additional changes concerning the calculation of certain types of FMLA leave and removes the FMLA forms from the regulations.

While SHRM has supported the goals of the FMLA from its initial stages of development, our comments submitted in response to the proposal make clear that SHRM believes the Department’s proposed changes to employer intermittent leave tracking are not required by the two statutes and should be withdrawn. In brief, the proposal would eliminate an employer’s flexibility to maintain a policy intended to discourage tardy arrivals by tracking leave in one-hour increments. SHRM believes the existing provision is important and should remain unchanged because it encourages employees to be selective about when they take leave, which helps employers maintain necessary staffing levels and control attendance problem.

Furthermore, the department has proposed to remove FMLA forms from the current FMLA regulations. SHRM objected to the removal of these forms from the regulations because doing so would eliminate any requirement to submit revised forms to a notice and comment procedure. SHRM conveyed that proposed changes to the “physical impossibility” clause under the FMLA are likewise ill-conceived and likely to cause confusion for both employers and employees.

Fourteen state councils and 30 chapters signed on to the official SHRM comments. In addition, SHRM members submitted 370 individual comments in response to the proposed regulations. The SHRM-led National Coalition to Protect Family Leave also submitted comments on the proposed rule.  To review a copy of the coalition comments, click HERE.

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