Labor Law Center Blog » Blog Archive » New FMLA, NDAA Rules Include Advance Notice Requirement

New FMLA, NDAA Rules Include Advance Notice Requirement

February 11th, 2008 Posted by Amelia

On February 11, 2008, the U.S. Department of Labor published proposed updates to the FMLA regulations. Employers should be aware that for non-military families, the old rules remain in effect until April 11, 2008.

The Family and Medical Leave Act of 1993 allows workers to take unpaid, job-protected leave to attend to their own serious illness, care for an immediate family member who is seriously ill, or bond with a new child.

An addition to the FMLA under the National Defense Authorization Act of 2008, or NDAA, expands FMLA leave to 26 weeks for certain military families. The law went into effect the day it was signed, meaning military families have been entitled to this leave since January 28, 2008.

“This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace,” said Victoria A. Lipnic, assistant secretary for the Employment Standards Administration. “It also implements a law President Bush recently signed to extend family and medical leave to families of America’s soldiers who are suffering serious illness or injury.”

The three most important changes in the proposed new rules include employer notice obligations, employee notice obligations and the new rules for Military Family Leave.

A major complaint by employers in the past has been that employees could take unscheduled days off without reporting the absence properly. Under the old regulations, employees had up to two full business days after an absence to inform the employer that the absence was FMLA leave. For many employers, the lack of notice that the worker would be absent, before the shift, was a major operational disruption.

Under the new rules, in most cases, an employee who uses FMLA must follow the employer’s “usual and customary” reporting or call-in procedures to report an absence. Some exceptions are made for “unusual circumstances” such as when an employee has a heart attack while driving to work.

A second major change involves the employer notice obligations. Under the new rules, all the employer notice requirements are consolidated. The rules will impose increased notice requirements on employers, to be sure that employees understand their FMLA rights. The new rules give employers five business days, rather than two business days, to send eligibility and designation notices to workers.

In addition, if a medical certification is incomplete or insufficient, the employer must return it to the employee and specify in writing what information is lacking. The employee then has seven days to address the deficiency. According to the U.S. Department of Labor, this change will prevent employees who are entitled to FMLA leave from being denied it on a technicality.

A third major change specifies procedures for military families to take up to 26 weeks of unpaid, job-protected leave under the NDAA.

The proposed changes also include technical changes that reflect decision by the Supreme Court and lower courts in the 15 years since the FMLA was passed.

Other changes under the proposed rules which will be addressed more completely in future articles include rulings on:

The “Ragsdale” decision on employer penalties
Light Duty does not count as FMLA leave
Employee’s right to settle FMLA suits out of court
Refines the definition of a “serious health condition”
Defines how often a worker on FMLA must visit a healthcare provider
Permits substitution of paid leave if the employee qualifies
Permits employers to deny “Perfect Attendance Awards” to employees who have been absent on FMLA
Changes to the medical certification process including process and timing
Changes to the “fitness-for-duty” certification to return to work

“It’s time to update these regulations — to reflect court decisions, clear up ambiguities and address issues that weren’t contemplated when the regulations were first issued in 1995,” said Lipnic. “This proposal is the result of a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department’s experience in administering and enforcing the law.”

Employers and other interested parties are encouraged to comment on the proposed rules until April 11, 2008.

Comments may be posted at http://www.regulations.gov under the keywords “Family and Medical Leave Act” (be sure to use quotes.) The comments will be published in their entirety, including any contact information provided.

The U.S. Department of Labor will publish the final FMLA and NDAA rules about April 11, 2008.

The FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor.