Executive Branch

Click here to urge the Administration to correct FMLA interpretation problems in order to allow for a more consistent and fair application of the law.

Click here for Coalition Comments Recently Submitted to the Office of Management and Budget

Click here for FMLA Excerpts from the Department of Labor Regulatory Agenda

Final Repeal of Birth and Adoption Unemployment Compensation (BAA-UC) Regulations "BABY UI"

Since August 14, 2000, the regulation had permitted states to use their unemployment insurance funds in order to provide parents with paid family leave. Wisely, to date, no state had enacted legislation in accordance with the BAA-UC regulation. The regulation was described by the Clinton Administration as an experiment. The experiment did not work and wisely, the regulation was repealed.

Many FMLA Corrections Coalition members submitted comments on the original BAA-UC proposal as well as on President Bush Administration's proposal to repeal the unwise regulation. We continued our efforts urging repeal through numerous comments, meetings and letters for more than a 3 year period.

The Department of Labor's final BAA-UC rule publication contained a statement recognizing that many of the comments received by the Department of Labor related to current FMLA problems and concerns. Indeed, many of the comments submitted by FMLA Corrections Coalition members against the Birth and Adoption Unemployment Compensation rule pertained to FMLA compliance and operational issues which would have been exacerbated had the poorly drafted Birth and Adoption Unemployment Compensation rule been implemented by the states.

The Department of Labor's final BAA-UC rule publication recognized that many of the comments received by DOL related to FMLA problems and concerns. Many of the comments submitted by FMLA Corrections Coalition Members against Baby UI addressed FMLA compliance and operational issues which would be increased under implementation of the new rule.

Background: Links and Dates

Department of Labor Opinion letters issued by President Clinton's administration have been inconsistent and somewhat vague, leaving employers and workers guessing what the DOL and the courts will deem to be "serious." The following excerpts from DOL opinion letters highlight the difficulty employers face in complying with the Act:

• April 7, 1995 DOL opinion letter No. 57 states that "The fact that an employee is incapacitated for more than three days, has been treated by a health care provider on at least one occasion which has resulted in a regimen of continuing treatment prescribed by the health care provider does not convert minor illnesses such as the common cold into serious health conditions in the ordinary case (absent complications)." Click here for the full text of the letter.

• December 12, 1996 DOL opinion letter No. 86 states that letter No. 57 "expresses an incorrect view," that, in fact, with respect to "the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc.," if any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment (continuing treatment by a health care provider), "then the absence would be protected by the FMLA. For example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying 'serious health condition' for purposes of FMLA." Click here for full text of the letter.

Click here for the Clinton Administration's Birth and Adoption Unemployment Compensation Rule (Baby UI) which was created to allow states to use unemployment insurance trust funds for paid family leave.

• December 3, 1999, DOL published Notice of Proposed Rulemaking in Federal Register with 45-day period over holiday season.

• Comment period was extended 15 days through February 2, 2000.

• On March 9, 2000, the House Committee on Ways and Means, Subcommittee on Human Resources (Chair Nancy Johnson, R-CT) held a hearing on the proposal. Click here for testimony before Congress urging Baby UI repeal *SHRM, the Chamber and LPA filed a lawsuit in an effort to invalidate the proposed regulation which was dismissed in 2002 as "unripe" because no state had enacted legislation allowing unemployment insurance funds to be used for the birth and adoption of a child.

• On 5/28/02 the Coalition submitted comments to the Office of Management and Budget urging repeal of Baby UI as well as FMLA Corrections.