labor lawAdivision of labor law center

On February 11, 2008, the U.S. Department of Labor proposed updates to the FMLA regulations for all families that Alaska employers should be aware of.

The FMLA (Family and Medical Leave Act) of 1993 provides unpaid, job-protected leave for Alaska employees to care for a sick child, parent or spouse, or for their own serious illness. FMLA also allows workers to take leave for childbirth, and after adoption or fostering of a new child.

The NDAA, or National Defense Authorization Act of 2008 expands FMLA leave to 26 weeks for families of certain military members. The law went into effect immediately, providing leave to since January 28, 2008. For non-military families, the current FMLA rules remain in effect until April 11, 2008.

Assistant Secretary of Employment Standards Administration, Victoria A. Lipnic, said, “This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace. 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 expanded FMLA rules consist of several changes. The most important are employer notice obligations, employee notice obligations and updated rules for Military Family Leave.

Previous to the implementation of the new rules, employees could take unscheduled days off and had up to two days to report the absence as FMLA leave. The lack of notice caused problems for employers by disrupting normal operations. Under the new rules, workers must follow the “usual and customary” procedures for reporting absences.

The second major change imposes increased notice requirements for companies to ensure that workers understand their FMLA rights. Instead of two business days, employers will now have five business days to send eligibility notices to their employees.

If the employee’s medical certification is insufficient or incomplete, companies must inform the employee in writing exactly what information is lacking. The worker has seven days to respond. The rule helps prevent denial of FMLA leave because of a technicality.

Change number three allows, under the NDAA, military families to take up to 26 weeks of unpaid job-protected leave.

More Alaska FMLA Changes

On February 11, 2008, the U. S. Department of Labor published several suggested changes to the regulations for FMLA (Family and Medical Leave Act).

The U. S. Department of Labor states that the proposed changes will better facilitate communication between workers, healthcare providers and employers. In addition, these changes take into account several rulings by the U. S. Supreme Court and lower courts that affect the FMLA.

One of these court rulings is the Ragsdale Decision. In Ragsdale, a worker who had already taken 30 weeks of paid leave was denied additional unpaid FMLA leave. The U.S. Department of Labor sued the employer and sought a penalty for not awarding the FMLA leave. The U. S. Supreme Court ruled in Ragsdale vs. Wolverine World Wide, Inc. that in some cases, workers who had already taken more than 12 weeks of paid leave may not be eligible for an additional 12 weeks of FMLA leave. The ruling further explained that employees are entitled to a total of 12 weeks of unpaid leave, and those who’ve already taken 12 or more weeks of leave, paid or unpaid, are not entitled to penalties.

The changes to FMLA will go into final effect on April 11, 2008. Until that time, employers are encouraged to comment on the recommended changes by visiting http://www.regulations.gov. Once on the site, type the keywords “Family and Medical Leave Act” (in quotes) and post the comment. Note that the comments will be viewable by the public.

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