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Mike Bryant
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Bush Administration Last Hoorah : Next 60 Days Could Be Dangerous For Consumers

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The Injuryboard has been covering the issue of preemption for some time. There are a number of great blogs explaining how the Bush administration has attacked state rights, rewritten the administration rules and double dealt on the sides of pharmaceuticals at every turn. While the election does suggest that relief is on the way, it is clear that the next 60 days could be even worse.

The American Association for Justice has identified 21 regulations that have to be watched. As the Bush administration goes out of it’s way to help a list of big businesses. these are changes that may take forever to correct. For the party of less government intrusion, the hypocrisy is clear.

“The Bush administration has included preemption language in over 60 proposed or final rules, limiting consumer protections in everything from drug labels, seat belts, bus safety, and prescription drugs’ supplemental labeling,” added Weisbrod. “We only hope the Obama Administration will give greater deference to consumer safety and their right to access the civil justice system when harmed.”

Previously, there was some discussion that the administration would refrain from making major rule changes in the next couple of months. But recent changes in the Family and Medical Leave Act (FMLA) show that they are still doing what they want. The interesting thing about the FMLA change was that it was a combination of both good and bad changes. On the one hand, it provided for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty will be able to take up to 26 weeks of leave in a 12-month period, and families of National Guard and Reserve personnel on active duty will be able to take FMLA job-protected leave to manage their affairs — "qualifying exigencies" that are defined as (1) short-notice deployment, (2) military events and related activities, (3) child care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities where the employer and employee agree to the leave.

On the other hand, added changes more for the employer including consolidating all employer notice requirements into one section of the regulations; requiring employees to follow their employers’ normal and customary call-in procedures to provide FMLA leave notice, unless there are unusual circumstances (to fix a provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner); and offering guidance on the definitions of "serious health condition." If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Also, "periodic visits to a health care provider" for chronic serious health conditions are clarified: The term means at least two visits to a health care provider per year. Under the final rule, time spent in "light duty" work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light-duty period. An employee voluntarily doing light-duty work is not on FMLA leave, the rule states.

All signs are that the next 60 days could be very dangerous for the consumer. Hopefully, the continued vigilance will prevent it from being to bad.