LABOR & EMPLOYMENT NEWSLETTER - New Proposed Regulations for the FMLA

On February 11, the Department of Labor proposed 477 pages of new regulations for the Family Medical Leave Act, in what represents the most comprehensive update since the statute’s enactment in 1993. As a general matter, the FMLA requires covered employers (50 or more employees) to grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: (1) for the birth and care of the newborn child of the employee; (2) for placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition.

The proposed regulations seek to address the myriad of questions and concerns raised throughout the FMLA’s 15-year history. For example, one of the most frequent complaints from employers was that employees could be absent from work for up to two days before having to notify employers that the time already taken off was FMLA leave. Under the proposed regulations, however, employees would have to follow any procedures established by their employers for notification of FMLA leave (except in emergency situations).

In addition to responding to employers’ complaints, the DOL has attempted to address and reconcile disagreement between the courts, providing employers with some degree of certainty and uniformity. In particular, the new regulations seek to clarify:

Procedures related to required notices, medical and fitness-for-duty certifications, and designation of leave;
When an employee’s inability to work overtime exhausts FMLA leave;
That light duty does not exhaust FMLA leave; and
The definition of a “serious health condition.”

The new regulations also seek to allow employers to:

Deny certain bonuses to employees who do not qualify for them because they took FMLA leave;
Require employees to comply with the terms and conditions of their paid-leave policies to substitute paid leave for FMLA leave; and
Voluntarily settle claims of past FMLA violations.

At this juncture, the DOL has invited public comment on the proposed regulations, which are available online at http://www.dol.gov/esa/whd/, until April 11, 2008.

FMLA Leave to Care for Family Member in Military or for a Qualifying Exigency

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act. Section 585 of the NDAA amends the FMLA to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” While this provision allows for up to 26 weeks of leave, as opposed to the standard 12 weeks of FMLA leave, this leave is available only during a single 12-month period, and it is also combined with all other FMLA leaves. This provision is effective immediately. While the DOL works to prepare guidelines, the Wage and Hour Division will simply require employers to act in good faith in providing leave under the new law.

The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Unlike the previous new provision, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.”

Meanwhile, employers should be aware of the expansion of their obligations under the FMLA and should revise their FMLA policies and procedures to include leave as provided in the NDAA amendments. If you have any questions regarding the FMLA, revisions to your policies or procedures, or any other employment related issue, please contact tiffany.hawkins@strasburger.com