labor lawAdivision of labor law center

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 expansion to the FMLA under the National Defense Authorization Act of 2008, or NDAA, expands FMLA leave to 26 weeks for certain military families.  This law went into effect the day it was assigned, 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.

Some of the changes include rulings on:

• 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
• 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

“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 Victoria Lipnic, of the U.S. Department of Labor. “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.”

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