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US DOL Announces Details on FMLA Changes, NDAA

February 13th, 2008 Posted by Amelia

There are a number of proposed changes to the FMLA regulations. These tentative rules were published by the U.S. Department of Labor on February 11, 2008.

One of the most important changes concerns posting requirements. The U.S. Department of Labor is requiring every employer to post a notice of the new Military Family Leave signed into law as part of the NDAA. This notice is required effective immediately, and penalties apply to employers who do not post it prominently.

In addition to the usual labor law posters, every employer must post the Military Family Leave Notice in a prominent place where it is visible to all employees. This notice is in addition to other state and federal labor law posters that every employer is required to display.

According to the U.S. Department of Labor, the changes to the FMLA regulationswill facilitate better communication between workers, healthcare providers and employers. The rules also take into account a number of rulings by the U.S. Supreme Court and lower courts that have affected the FMLA.

The Ragsdale Decision is one of those rulings. In Ragsdale vs. Wolverine World Wide, Inc., the U. S. Supreme Court ruled that in some cases, employees who have already taken more than 12 weeks of paid leave, may not be entitled to an additional 12 weeks or more of unpaid leave under FMLA. In Ragsdale, an employee was denied unpaid FMLA leave after taking 30 weeks of paid leave. The U.S. Department of Labor sued the employer, seeking a penalty for denying the unpaid FMLA leave. The court ruled that workers are entitled to a total of 12 weeks of unpaid leave under FMLA. Workers who have already had 12 weeks or more of paid or unpaid leave, and can show no individual harm, are not entitled to penalties.

Another proposed change to the FMLA rules clarifies that being on “light duty” does not count towards an employee’s FMLA leave entitlement. In other words, an employee may be on “light duty” for 10 weeks, and still be entitled to 12 additional weeks of unpaid leave, under FMLA. The “light duty” assignment also does not affect the employee’s reinstatement rights. A warehouse worker who must switch to a job in the parts department due to a back injury is entitled to his original warehouse job when he is recovered – not the parts department position he took on “light duty.”

Both of these changes reverse the trend of court cases. At least two cases in lower courts have ruled that “light duty” assignments could be considered part of FMLA leave, under the law.

Another proposed change to the FMLA law would reinforce a longstanding position by the U.S. Department of Labor that employees can settle their FMLA claims out of court. In order to do so, an employee must normally waive their FMLA rights, retroactively.

However, employees still cannot waive their FMLA rights in advance. This means that a union contract could not include a provision that employees were not entitled to FMLA leave.

This change in the wording of the rules was necessary because the Fourth Circuit court recently interpreted the existing rules to read that employees are prohibited from waiving their FMLA rights in advance, or retroactively.

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.