Office of the House Employment Counsel: Comments Regarding the Board of Directors of the Office of Compliance’s 2015 Family and Medical Leave Act Proposed Regulations

GENERAL COMMENTS

In its Preamble to the Notice of Proposed Rulemaking and Request for Comments from Interested Parties (“NPRM”), ¹ the Board of Directors of the Office of Compliance (“the Board”) presents a number of explanations regarding the nature of, and reasoning for, the language of its 2015 Family and Medical Leave Act Proposed Regulations (”Proposed Regulations”). The Board also invites comment on several specific provisions of the Proposed Regulations. The following general discussion points underscore several concerns, questions, and responses of the Office of House Employment Counsel (“OHEC”), regarding the statements and requests contained in the Preamble. In addition, we include in this section our suggestions for clarifying several recurring themes throughout the Proposed Regulations.

1. The Application of Military Family Leave Provisions

By far the biggest proposed amendment to the Office of Compliance’s (“OOC”) current FMLA regulations is the addition of the “military family leave provisions,” based on prior statutory amendments to the FMLA. Preamble at 2-4. We were surprised to learn that the Board believes that the statutory amendments were not made applicable to the legislative branch at the time they were enacted in 2008 and 2009. Specifically, the Board cites Congress’s alleged failure to comply with section 102(b)(3) of the Congressional Accountability Act (“CAA”), requiring House and/or Senate Committee reports to state whether or not provisions of a bill apply to the legislative branch. ² 2 U.S.C. § 1302(b)(3).³

Yet, in enacting the CAA, Congress signaled its intent to apply the same substantive FMLA rights and protections applicable in the Executive Branch and the private sector to congressional employees. We are of the view that when a statutory provision of the FMLA that has been generally incorporated by the CAA is amended, the subsequently amended statutory provision applies to congressional employees and employing offices, unless some other provision of the CAA precludes application of the amended statutory provision.