labor lawAdivision of labor law center

Every Massachusetts employer needs to be aware of changes to the FMLA, and of new regulations granting leave to military families.

The FMLA or Family and Medical Leave Act of 1993 provides workers unpaid, job-protected leave to care for their own serious illness, a family member illness or to care for a new child.

The National Defense Authorization Act of 2008 (NDAA), expands FMLA to provide up to 26 weeks of leave to military families. The bill went into effect immediately, providing leave since January 28, 2008.

For non-military families the current rules remain in effect until April 11, 2008.

Several changes to the FMLA were proposed by the U.S. Department of Labor on February 11, 2008. These changes include three significant updates: notice obligations for employers, for employees, and new regulations for Military Family Leave.

According to Victoria Lipnic, the Assistant Secretary for the Employment Standards Administration, “This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace.”

With the changes, specific rules are outlined for military families to take up to 26 weeks of Military Family Leave.

Also changed under the new rules are the notice obligations for employers. All notice requirements are consolidated with the new regulations, and employers have five business days instead of two business days to inform and to ensure employees understand their FMLA leave rights. Employers will also be required to inform employees in writing exactly what data is lacking when medical certification is incomplete or insufficient.

The changes for employee notice obligations pertain to the previous rule of allowing workers to take time off without notice, then take up to two days to report it as FMLA leave. The new regulations will require workers to follow their company’s “usual and customary” rules for absences. This gives employers a break. Prior to the changes, employers often suffered disruptions to daily operations when employees suddenly took leave.

Technical changes from decisions by the Supreme Court and lower courts during the 15 years since FMLA was enacted are also included in the updated regulations.

More Massachusetts FMLA Changes

The Family and Medical Leave Act of 1993 (FMLA) provides employees with up to 12 weeks of unpaid, job-protected leave. On February 11, 2008, the U. S. Department of Labor recommended several changes to the regulations governing FMLA leave, stating that the changes will aid communication between employers, healthcare providers and workers.

On April 11, 2008, the finalized rules will be published, but until that time all interested parties are encouraged to comment on the proposed changes. Visit www.regulations.gov, type the keywords “Family and Medical Leave Act”, including the quote marks, and post a comment. Note that all the comments are public.

Several lower court and Supreme Court rulings pertaining to FMLA over the past 15 years will be assimilated into the new regulations. Two of theses rulings reverse the trend of court cases.

For example, “light duty” rules have been clarified preventing “light duty” assignments from being charged to FMLA leave. At least two lower court cases, however, have ruled that “light duty” could legally be counted as FMLA leave.

In the U. S. Supreme Court case, Ragsdale vs. Wolverine World Wide, Inc, the court ruled that workers who have already taken more than 12 weeks of paid time off may not be entitled to 12 additional weeks of leave under FMLA. In Ragsdale, an employee was denied unpaid FMLA leave after already taking 30 weeks of paid leave. The U. S. Department of Labor sued the employer and sought a penalty for the denied leave. The court ruled that employees who have already taken 12 weeks of leave, paid or unpaid, are not entitled to a penalty.

Additional changes include clarifying an employee’s right to waive FMLA rights. A Fourth Circuit Court decision interpreted the law to mean a worker is prohibited from waiving their FMLA rights. The change will clarify the U. S. Department of Labor’s longstanding practice that allows an employee to waive their rights retroactively when settling an FMLA claim out of court. Waiving FMLA rights in advance is still prohibited.

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