April 11, 2008The Honorable Victoria A. LipnicAssistant Secretary for Employment StandardsEmployment Standards AdministrationU.S. Department of Labor, Room S2321200 Constitution Avenue, NWWashington, DC 20210Submitted electronically via Regulations.gov
RE: Notice of Proposed Rulemaking on the Family and Medical Leave Act of 1993 (73 Fed.Reg. 7876)
Dear Assistant Secretary Lipnic:The Institute for Liberty (IFL) thanks you for the opportunity to offer comments on theDepartment of Labor’s (DOL) proposal to change its regulations under the Family and MedicalLeave Act (FMLA). The Institute for Liberty is a non-profit 501c(4) organization. We focus onfederal executive branch policy, specifically the intersection of regulatory policy and small business and entrepreneurship.The rulemaking at hand is an important one. Labor regulations, because of their pervasivenature, impact the widest cross-section of small businesses. While not as complex asenvironmental or occupational safety and health regulations, they nevertheless require a certaindegree of expertise. In fact, it is well-recognized that the first regulatory “professional” hired bya small business
someone skilled in labor and employment law.We were encouraged by the fact that DOL is considering changes to the FMLA. The initialregulations under FMLA were conceived fifteen years ago, and it is important for agencies to re-open and re-examine regulations from time to time. We were less encouraged, however, by thesubstance of the proposed reforms, as they fail to correct two key deficiencies in the underlyingregulatory regime.
The Definition of “Serious Health Condition”
The FMLA's medical leave has not worked as intended due to the DOL’s implementingregulations and interpretations. The Labor Department has been inconsistent and vague in itsregulations and opinion letters leaving employers and employees guessing as to what the agencyand the courts will deem to be a “serious” health condition.One year, the Department issued an opinion letter stating that the cold, the flu and non-migraineheadaches were not serious health conditions (Wage and Hour Opinion Letter, FMLA-57, April7, 1995). The next year, the DOL issued an opinion letter stating that they might be (Wage and