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Extended Comment Period for DOL's Proposed FMLA Rule Changes

The U.S. Department of Labor (DOL) recently issued a proposed rule that would affect employers’ implementation of the Family and Medical Leave Act (FMLA) and is accepting comments on these changes. Areas that are at risk of being modified or removed completely include the calculation of increments of FMLA leave, the physical impossibility provision, military leave allotment and airline flight crew eligibility under the Airline Flight Crew Technical Corrections Act (AFCTCA).

Concerned about the proposed rule, the Society for Human Resource Management (SHRM) is raising awareness about and encouraging members to take advantage of the opportunity to voice their opinions. As both members and supporters of SHRM’s stance, Presagia has submitted their suggested template, read the full text below:

I am writing as a member of the Society for Human Resource Management (SHRM) to comment on the U.S. Department of Labor (DOL) notice of proposed rulemaking on the Family and Medical Leave Act (FMLA) that was published in the Federal Register on February 15, 2012.  

On a daily basis, HR professionals must determine whether or not an employee is entitled to FMLA leave and must track an employee’s leave.  In addition, HR is tasked with determining how to administer FMLA eligibility and entitlement provisions fairly and consistently.  I am concerned that DOL is proposing to undo two improvements, added in the last FMLA rulemaking, strongly supported by the HR community.

The proposed rule changes the way employers would track FMLA leave when an employee uses intermittent or reduced schedule leave, eliminating an employer’s limited flexibility to utilize different increments of FMLA leave at different times of the day or shift.  I believe the existing provision is important for the ease in implementing FMLA leave.  It helps dissuade employees who use their intermittent leave to sidestep their employer’s attendance policies – to avoid disciplinary action for arriving late to work – and encourages employees to be more selective about when they take their leave.

DOL also proposes changes to section 825.205(a)(2) addressing situations where it is physically impossible for the employee to return to work, signaling that the agency may eliminate this provision altogether.  I urge DOL to keep the physical impossibility provision.  This provision is limited in its application and protects employees who only require a short increment of FMLA leave, but must miss additional time from work because it is physically impossible for them to return to work once the FMLA-protected need for leave is completed.

I urge DOL to clarify these provisions, rather than eliminate them.

The deadline for submissions has been extended from April 16 to April 30. For more detailed information on the proposed changes visit The United States Department of Labor or to find out how to send your own comment with SHRM's template, contact SHRM

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