labor lawAdivision of labor law center

The U.S. Department of Labor proposed updates to the regulations for the Family and Medical Leave Act of 1993 (FMLA) on February 11, 2008. The FMLA allows workers to take unpaid, job-protected leave to care for a newborn child, to care for a seriously ill family member, or to care for themselves when seriously ill.

Under the NDAA of 2008 (National Defense Authorization Act), certain military families became eligible for up to 26 weeks FMLA leave. The law went into effect immediately, providing leave for these families effective January 28, 2008.

Nebraska employers should be aware that current FMLA rules will remain in effect for non-military families until April 11, 2008.

In addition to the detailing specific procedures for taking Military Family Leave, the expanded FMLA regulations include two changes regarding employer and employee notice obligations.

Before the enactment of the changes, employees could take time off without giving notice and had two days to report the leave as FMLA. This rule caused problems for many employers, because workers taking time off without advance notification often interfered with daily operations. Under the new rule, employees must follow the company’s “usual and customary” procedure for reporting an absence.

The third major change involves the employer’s notice obligations. Instead of the current two business days, companies will now have five business days to send out eligibility and designation notices and to ensure that employees understand their FMLA leave rights. Also when an employee’s medical certification lacks information or doesn’t meet the FMLA criteria, the company must inform the employee, in writing, of what information is lacking.

Several technical changes that resulted from lower court and Supreme Court decisions over the last 15 years are included in the new FMLA changes, too.

Victoria A. Lipnic, the Assistant Secretary for the Employment Standards Administration, states, “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.”

More Nebraska FMLA Changes

Several changes have been proposed to the FMLA (Family and Medical Leave Act) regulations.

The U. S. Department of Labor states that these changes, which they proposed on February 11, 2008, will help improve communication among employers, healthcare providers and employees.

The proposed changes include a clarification of the long-standing U. S. Department of Labor practice of allowing employees to settle FMLA claims out of court. Normally, this requires the employee to waive their FMLA rights, retroactively.

A Fourth Circuit Court ruling misinterpreted the law and prohibited employees from waiving FMLA rights in any way. The new FMLA rule updates the wording to be clear. Waiving FMLA rights retroactively when settling a claim is permitted, waiving FMLA rights in advance is prohibited.

Two major changes are also the result of court rulings.

The rules for “light duty” assignments have been clarified in the updated FMLA regulations. “Light duty” can not be counted as FMLA leave. If a worker is injured and put on “light duty” for 6 weeks, that worker is still eligible for 12 weeks of unpaid FMLA leave.

The new FMLA regulations with go into effect on April 11, 2008. Comments on the proposed changes are welcomed and encouraged. Employers and interested persons can visit www.regulations.gov, type in “Family and Medical Leave Act” (with the quote marks) and post a comment. Be aware, however, that all comments are viewable by the public.

FMLA regulations come under the jurisdiction of the U. S. Department of Labor’s Wage and Hour Division.

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