Bush administration officials have come out on the side of labor groups on 2 points in a draft of a Family and Medical Leave Act update.

The U.S. Department of Labor, has decided that employers should not be able to count time spent on light duty when determining whether employees have used up their 12-week allotment of unpaid FMLA medical leave.

Department officials also decided against granting employers’ request for major changes in a provision that permits employees to use FMLA medical leave to deal with any health condition that results in a “period of incapacity of more than 3 consecutive calendar days” that involves treatments 2 or more times by a health care provider or leads at least once to a “regimen of continuing treatment.”

Labor Department officials published the FMLA update draft today in the Federal Register, in a notice of proposed rulemaking.

Congress originally adopted the FMLA in 1993. The law protects the jobs of eligible workers who miss up to 12 weeks of work per year as a result of the birth or adoption of a child, a serious health condition or a serious health conditions affecting close relatives.

Disability insurers with absence management operations have taken a keen interest in the FMLA, in part because of reports that employees at some companies have started using the FMLA in connection with relatively minor conditions, such as colds, that lead to absences of just 3 days.

Companies also have reported stories of employees who have used the ability to take FMLA leave in increments of as little as 3 minutes to justify coming in to work slightly late each morning, or to change their shifts.

The Labor Department conducted studies of the FMLA in 1996 and 2001, and it published a request for public comments about the FMLA in 2006.

The 2006 request for comments drew 15,000 responses, Labor Department officials report.

Many commenters wrote to support or complain about the department’s interpretation of an FMLA provision that governs employees who take “light duty” assignments while coping with serious health conditions.

The Society for Human Resource Management, Arlington, Va., joined with the U.S. Chamber of Commerce, Washington, and many other business groups to ask the Labor Department to count days when employees can handle only light duty assignments as days off for purposes of computing FMLA leave periods.

Labor unions and groups such as Families USA, Washington, argued that counting light duty work as FMLA leave is not appropriate.

The Labor Department itself has been counting light duty days as days off for some purposes and work days for other purposes.

“Upon further review,” officials write, “the department believes that the current regulatory language does not serve the [FMLA's] purpose to provide job protection when FMLA leave is taken,” officials write.

The department has decided to delete a sentence in a section on job restoration rights, to make it clear that time spent in a light duty position does not affect reinstatement rights, officials write.

Department officials also have tried to fine-tune the “continuing treatment” section of the FMLA, which makes having a condition that leads to just 3 days of incapacity one possible justification for an FMLA claim.

To reduce the likelihood that employees will use FMLA leave in connection with a bad cold, officials have proposed changing the provision that 3 days of incapacity may qualify an employee for FMLA leave if the employee receives medical care 2 or more times. To use the revised “3 days of incapacity” provision, an employee would have to receive care “2 or more times within a 3-day period unless extenuating circumstances exist.”

“The difficulty is in adequately drawing the line between conditions that usually resolve in a few days, and those that are ‘serious,’” Labor Department officials write in the preamble to the draft regulations. “Medical conditions that are benign to some may be incapacitating to others.”

The Labor Department could come up with a definition that would reduce the chances of employees using FMLA leave for relatively minor conditions, but “Congress itself did not provide a statutory ‘bright line’ of demarcation for ‘seriousness,’ ” officials write.

Members of Congress specifically declined to establish “bright-line rules” for what should be covered by the FMLA and what should be covered by the law, officials write.

In a few of the many other provisions in the draft regulations, Labor Department officials:

- Note that male employees can use FMLA leave to help pregnant spouses with conditions such as severe morning sickness or to accompany a pregnant spouse to a doctor’s appointment.

- Discuss the requirement that employers reinstate employee health coverage when an employee returns from FMLA leave.

- Permit an employer to compute an employee’s FMLA leave without adding extra days to compensate for scheduled holidays that fall within the block of leave, as long as the employee is taking leave in an increment of 1 week or more.

Unum Group Corp., Chattanooga, Tenn., is one of the organizations that asked the Wage and Hour Division to leave that provision unchanged.

“Changing this process could add difficulty to the already complex method of calculating FMLA leave entitlements,” Unum warned in a response to the Labor Department’s 2006 request for comments.

Labor Department officials write that the current rule is clear and appears to be working well, and they question whether the Labor Department has the authority to change the regulation to exclude holidays from FMLA leave computations.

Comments on the proposed regulations are due April 11.