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DOL/ESA RIN: 1215-AB35 Publication ID: Spring 2008 
Title: Family and Medical Leave Act of 1993; Conform to the Supreme Court's Ragsdale Decision 
Abstract: The U.S. Supreme Court, in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), invalidated regulatory provisions issued under the Family and Medical Leave Act (FMLA) pertaining to the effects of an employer's failure to timely designate leave that is taken by an employee as being covered by the FMLA. The Department will address this and decisions of other courts in proposed revisions to the FMLA regulations. In addition, effective January 28, 2008, section 585(a) of the National Defense Authorization Act for FY 2008 (NDAA), Public Law 110-181, amended the FMLA to permit an eligible employee who is the “spouse, son, daughter, parent, or next of kin of a covered servicemember” to take up to a total of 26 workweeks of leave during a 12-month period to care for the covered servicemember, defined as “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The NDAA amendment to FMLA also permits an eligible employee to take up to 12 workweeks of FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Regulatory amendments will be developed to address these new statutory provisions. 
Agency: Department of Labor(DOL)  Priority: Economically Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: Yes  Unfunded Mandates: No 
CFR Citation: 29 CFR 825   
Legal Authority: 29 USC 2654   
Legal Deadline:  None

Statement of Need: The FMLA requires covered employers to grant eligible employees up to 12 workweeks of unpaid, job-protected leave a year for specified family and medical reasons, and to maintain group health benefits during the leave as if the employees continued to work instead of taking leave. When an eligible employee returns from FMLA leave, the employer must restore the employee to the same or an equivalent job with equivalent pay, benefits, and other conditions of employment. FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided by the FMLA. The FMLA regulations require employers to designate if an employee's use of leave is counting against the employee's FMLA leave entitlement, and to notify the employee of that designation (29 CFR 825.208). Section 825.700(a) of the regulations provides that if an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against the employee's 12 weeks of FMLA leave entitlement. On March 19, 2002, the U.S. Supreme Court issued its decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). In that decision, the Court invalidated regulatory provisions pertaining to the effects of an employer's failure to timely designate leave that is taken by an employee as being covered by the FMLA. The Court ruled that 29 CFR 825.700(a) was invalid absent evidence that the employer's failure to designate the leave as FMLA leave interfered with the employee's exercise of FMLA rights. The Department intends to propose revisions to address issues raised by this and other judicial decisions.

Summary of the Legal Basis: This rule is issued pursuant to section 404 of the Family and Medical Leave Act, 29 U.S.C. 2654.

Alternatives: After completing a review and analysis of the Supreme Court's decision in Ragsdale and other judicial decisions, regulatory alternatives may be developed for notice-and-comment rulemaking.

Anticipated Costs and Benefits: Preliminary estimates of the anticipated costs of this regulatory action have not been determined at this time and will be determined at a later time.

Action Date FR Cite
Request for Information  12/01/2006  71 FR 69504   
Request for Information Comment Period End  02/16/2007  72 FR 3775   
Request for Information Comment Report  06/28/2007  72 FR 35550   
NPRM  02/11/2008  73 FR 7876   
NPRM Comment Period End  04/11/2008    
Final Action  11/00/2008    
Regulatory Flexibility Analysis Required: Undetermined  Government Levels Affected: Undetermined 
Small Entities Affected: Businesses, Governmental Jurisdictions, Organizations  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Alexander J. Passantino
Acting Administrator, Wage and Hour Division
Department of Labor
Employment Standards Administration
200 Constitution Avenue NW., FP Building, Room S3502,
Washington, DC 20210
Phone:202 693-0051
Fax:202 693-1302