DOL proposes FMLA rule changes

The U.S. Department of Labor has proposed a few changes to the Family and Medical Leave Act that, if approved, will have an impact on workers in Wisconsin. These proposed rules will only change the federal law; the Wisconsin FMLA will not be affected. The public comment period on the new language closes at the end of March.

The changes fall into three broad categories: FMLA administration, worker reinstatement and military leave. All will affect both employee and employer.

The administrative change is actually a return to a 2009 rule. Employers would have to track FMLA leave in the smallest increments that their payroll systems use to track employee hours. If payroll is based on 15-minute periods, FMLA leave will also be. Currently, FMLA leave is calculated the same way vacation or sick time is calculated — by the hour or by the half-day.

There has been a lot of confusion, it seems, about a particular reinstatement rule: the “physical impossibility” provision. In some jobs, it is physically impossible for a worker to complete a full shift after a few hours of leave; the rule allows employers to dock the worker for a full shift in those circumstances.

The typical example is a flight attendant who takes four hours of leave to deal with a family emergency. When the flight attendant arrives at work, his assigned flight has left. The airline says it is “physically impossible” for him to return to work that day.

According to the DOL, employers have been interpreting the rule too broadly. The proposed rule clarifies that “physically impossible” does not mean “inconvenient.” The employee may return to his position or an equivalent job.

We’ll cover the third category, military leave, in our next post.


Alan Olson writes this web-log to provide helpful information regarding employment law cases. He practices employment law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at [email protected] with questions about the information posted here or for advice on specific retaliation claims.


:, “FMLA changes: 3 things you need to know,” Christian Schappel, Feb. 7, 2012


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