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Family and Medical Leave Act of 1993

Proposed Rule

Score: 33 / 60

RULE SUMMARY

The Department of Labor’s Employment Standards Administration/Wage and Hour Division proposes to
revise certain regulations implementing the Family and Medical Leave Act of 1993 (‘‘FMLA’’), the law that provides eligible workers with important rights to job protection for absences due to the birth or adoption of a child or for a serious health condition of the worker or a qualifying family member. The proposed changes are based on the Department’s experience of nearly fifteen years administering the law, two previous Department of Labor studies of the FMLA in 1996 and 2001, several U.S. Supreme Court and lower court rulings, and the public comments received in response to a Request for Information (‘‘RFI’’) published in the Federal Register in December 2006 requesting information about experiences with the FMLA and comments on the effectiveness of these regulations. The Department is also seeking public comment on issues to be addressed in final regulations regarding military family leave.
 

METHODOLOGY

There are twelve criteria within our evaluation within three broad categories: Openness, Analysis and Use. For each criterion, the evaluators assign a score ranging from 0 (no useful content) to 5 (comprehensive analysis with potential best practices). Thus, each analysis has the opportunity to earn between 0 and 60 points.

CriterionScore

Openness

1. How easily were the RIA , the proposed rule, and any supplementary materials found online?
The RIA is in the proposed rule. This is available five clicks from the home page, the Wage and Hour Division in the A-Z- index, then clicking under Family & Medical Leave. The proposed rule can also be found on regulations.gov.
5/5
2. How verifiable are the data used in the analysis?
Data are sourced and links are usually provided. Explanations are given on how to obtain data that is not available online.
4/5
3. How verifiable are the models and assumptions used in the analysis?
All aspects of models and assumptions are consistent with or based on cited literature or analyses. It is obvious to the reader that cited works are recent publications. Most publications are linked.
5/5
4. Was the analysis comprehensible to an informed layperson?
The analysis itself is well-organized and easy to follow. The main problem is highly detailed and technical discussion of the regulation, rather than complicated economic analysis.
4/5

Analysis

5. How well does the analysis identify the desired outcomes and demonstrate that the regulation will achieve them?
3/5
Does the analysis clearly identify ultimate outcomes that affect citizens’ quality of life?
The goal of this regulation appears to be reduction in administrative and productivity costs of FMLA. It appears that the employees' greater understanding of the uses of the FMLA is the ultimate outcome that would affect his or her quality of life in the form of a marginal increase in monetary benefits or in the form of health care or time to be a caregiver. To that end, another outcome would be cost savings (not until after the first year since revisions are implemented) to the establishments that have eligible and non-eligible FMLA employees. This isn't clearly stated, however, though there's some relevant discussion that would lead the reader to deduce this.
2/5
Does the analysis identify how these outcomes are to be measured?
Yes, the RIA gives a detailed explanation of most of the calculations of how these benefits are measured, or references one of its reports to explain the methodology of doing so.
4/5
Does the analysis provide a coherent and testable theory showing how the regulation will produce the desired outcomes?
Often a theory is presented, but the effect (or absence of one) is sometimes just assumed.
3/5
Does the analysis present credible empirical support for the theory?
The size of effects is often calculated. Assessing the quality of the empirical evidence would require reading the underlying studies. Use of CONSAD and the Westat reports provides some confidence that the facts support the theory, and the direct links to these reports are also very beneficial for the reader.
4/5
Does the analysis adequately assess uncertainty about the outcomes?
The analysis acknowledges uncertainties but uses "best" value based on evidence that this is probably pretty accurate. Though no formal sensitivity analysis is done, the RIA gives some analysis of the likelihood of uncertainty, but doesn't clearly quantify the size of it as in some instances it is impossible to measure the number of intermittent leaves employees will take under FMLA in the future.
2/5
6. How well does the analysis identify and demonstrate the existence of a market failure or other systemic problem the regulation is supposed to solve?
4/5
Does the analysis identify a market failure or other systemic problem?
New regulations are motivated by court decisions and problems that have arisen as a result of the way the original regulations were written. Lack of information about the FMLA and a misinterpretation of the original regulation is the systemic problem here. The RIA covers all the proposed changes to the parts of the regulation that originally created the problem, including referencing the regulation's detailed changes, thoroughly covering all aspects of the problem.
5/5
Does the analysis outline a coherent and testable theory that explains why the problem (associated with the outcome above) is systemic rather than anecdotal?
It appears that the problem was systemic because the interpretation of the original FMLA left many employees confused about the qualifications for the unpaid leave, including a couple of legal instances that came up regarding this issue. The analysis provides a coherent and testable theory to correcting this problem with a reasonably thorough analysis of most aspects, including increasing employees' awareness of the FMLA and its appropriate use.
4/5
Does the analysis present credible empirical support for the theory?
Not exactly, but cost calculations support the notion that the existing regulations had some inefficiencies.
3/5
Does the analysis adequately assess uncertainty about the existence or size of the problem?
The RIA attempts to cover the extent of the problem by detailing the estimates of behavioral changes and monetary costs that will result from the revisions' corrections of the problem. Other than that, the likely extent of the problem is difficult to determine, but this is worthy of some relevant discussion.
2/5
7. How well does the analysis assess the effectiveness of alternative approaches?
1/5
Does the analysis enumerate other alternatives to address the problem?
The analysis does not address this topic.
0/5
Is the range of alternatives considered narrow (e.g., some exemptions to a regulation) or broad (e.g., performance-based regulation vs. command and control, market mechanisms, nonbinding guidance, information disclosure, addressing any government failures that caused the original problem)?
The analysis does not address this topic.
0/5
Does the analysis evaluate how alternative approaches would affect the amount of the outcome achieved?
No. However, since the regulation breaks down the impact of each change, even though it's implementing all of them as one option, it's easy to assess the effect of each.
1/5
Does the analysis adequately address the baseline? That is, what the state of the world is likely to be in the absence of federal intervention not just now but in the future?
The analysis assumes that the baseline is what actually occurred in the past under the old regulations, and this will not change unless the regulations are revised. This may be a reasonable assumption, but it wasn't explicitly justified.
2/5
8. How well does the analysis assess costs and benefits?
2/5
Does the analysis identify and quantify incremental costs of all alternatives considered?
It usually calculates costs but sometimes says data are inadequate.
4/5
Does the analysis identify all expenditures likely to arise as a result of the regulation?
Yes, businesses' administrative expenses, employees' expenses associated with medical certification, and lost productivity.
4/5
Does the analysis identify how the regulation would likely affect the prices of goods and services?
The analysis does not address this topic.
0/5
Does the analysis examine costs that stem from changes in human behavior as consumers and producers respond to the regulation?
Yes, the analysis examines the costs that stem from changes in employee behavior in particular. In this instance, it would be difficult to assess the changes that would stem from changes in consumer or producer behavior. The RIA explains: "The approach utilized was to present a summary of the changes most likely to result in behavior changes by covered employers and their employees and to estimate the monetary value of these changes whenever possible. (The preamble to the proposed rule provides a more detailed discussion of each proposed change.) Several findings in the Department’s RFI Report, noted below, influenced the methodology used to estimate the impact of the proposed revisions."
4/5
If costs are uncertain, does the analysis present a range of estimates and/or perform a sensitivity analysis?
Uncertainty is acknowledged, but the department provides justification for using "best" values. The RIA doesn't perform a sensitivity analysis, but it does recognize areas of uncertainty and links to further explanations of them in the reports and information that it draws upon, which is some relevant discussion.
2/5
Does the analysis identify the alternative that maximizes net benefits?
A net benefit calculation is performed, but it's not clear if this maximizes net benefits because alternatives were not analyzed.
2/5
Does the analysis identify the cost-effectiveness of each alternative considered?
The analysis identifies cost-effectiveness of the only alternative considered.
3/5
Does the analysis identify all parties who would bear costs and assess the incidence of costs?
Yes, the analysis identifies main parties who bear the costs—the employers who have FMLA eligible employees and the Department of Labor (implicitly taxpayers then too).
2/5
Does the analysis identify all parties who would receive benefits and assess the incidence of benefits?
There is much less discussion of incidence of cost savings, but the analysis argues that some industries will save more than others without calculating this.
1/5

Use

9. Does the proposed rule or the RIA present evidence that the agency used the analysis?
The RIA is in the rule, but there is no reference to it in the preamble.
1/5
10. Did the agency maximize net benefits or explain why it chose another alternative?
The agency tried to reduce net costs, but it is not clear if net benefits were maximized since there is no discussion of alternatives.
1/5
11. Does the proposed rule establish measures and goals that can be used to track the regulation's results in the future?
No, but given the quality of the RIA, it would not be hard to develop measures and goals.
1/5
12. Did the agency indicate what data it will use to assess the regulation's performance in the future and establish provisions for doing so?
The agency does not make a commitment to to track future effects, but they could be tracked using the types of data and analysis used in the RIA.
2/5
 
Total33 / 60

Additional details

Agency
Department of Labor
Regulatory Identification Number
1215-AB35
Agency Name
Department of Labor
Rule Publication Date
02/11/2008