labor lawAdivision of labor law center

New proposals published by the U.S. Department of Labor propose some changes to the Family and Medical Leave Act (FMLA) of 1993 that update employer and employee obligations and expand leave for some military families.

The proposals would also make some changes to FMLA that would reflect Supreme Court and lower court decisions rendered since the passage of the act.

Published February 11, 2008, the proposals take effect for the most part on April 11, 2008.

The expansion to FMLA leave under the National Defense Authorization Act (NDAA) of 2008, however, went into effect on January 28, 2008, the date the act was signed into law by President Bush.

In the past, employers complained, workers could take days off without reporting them in a timely manner. Old FMLA regulations said employees had two full business days after an absence to let the employer know it was FMLA leave. The results were serious disruptions in operations and productivity. The proposed change would require employees to follow company policy when reporting an absence, although there are exceptions for “unusual circumstances,” such as suffering a heart attack on the way to the job.

The proposals require more from Florida employers as well, guaranteeing that employees understand their rights under FMLA. If an employee submits an incorrect or incomplete medical certification, the employer must notify the worker in writing and the employee has seven days to correct the problem. The Labor Department said that would prevent employees from losing FMLA leave through a technical error. All employer notice requirements are consolidated under the new rules, and employers have five rather than two business days to send workers their designation or eligibility notices.

The FMLA guarantees unpaid, job-protected leave to an employee in the event of his own serious illness or that of a member of his immediate family. It also provides leave to care for and bond with a new child.

According to Victoria A. Lipnic, assistant secretary for the Employment Standards Administration, the proposals preserve employees’ rights to medical and family leave “while improving the administration of FMLA by fostering better communication in the workplace.”

More Florida FMLA Changes

Employers should look to new changes in the Family and Medical Leave Act (FMLA) regulations around April 11, 2008.

Until that date, employers and other interested parties may comment on the proposed rule changes. Those comments may be posted at http://www.regulations.gov under the keywords “Family and Medical Leave Act” (with quotes included). All comments will be published in their complete form, including whatever contact information is provided.

The proposed rule changes were first published by the U.S. Labor Department on February 11, 2008. According to the Labor Department, the changes should improve communications between three key stakeholders, namely employers, employees, and providers in the healthcare system.

The proposals take into account rulings relating to the FMLA by lower courts and by the U.S. Supreme Court.

One such case is the Ragsdale decision. In Ragsdale vs. Wolverine World Wide, Inc., an employee had been denied unpaid leave after taking 30 weeks of paid leave. The Labor Department sued the employer on the worker’s behalf. The Supreme Court ruled that workers do not necessarily have the right to their 12 weeks of unpaid FMLA leave even if they have already had 12 weeks or more of some other form of leave.

Another change strengthens a position by the Labor Department saying employees can settle FMLA leaves out of court, provided they waive their FMLA rights retroactively. They are still not allowed to waive rights in advance. This follows a Fourth Circuit Court ruling recently interpreting FMLA rules to say that workers may not waive those rights either in advance or retroactively.

A third change addresses “light duty” issues. It makes clear that “light duty” does not count toward FMLA leave. A worker may take 10 weeks of “light duty,” for example, and still be guaranteed the usual 12 weeks of unpaid FMLA leave. Also, a worker’s “light duty” assignment does not affect his or her reinstatement following leave taken under FMLA. A warehouse worker assigned to “light duty” in the parts department, for example, would be reinstated to the original warehouse position, not the parts department, after taking FMLA leave.

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