labor lawAdivision of labor law center

On November 17, 2008, the U.S. Department of Labor published final updates to regulations for the FMLA, or federal Family and Medical Leave Act.

 

The updated regulations will require every employer to display a new 2009 FMLA poster. Employers can preorder the new FMLA poster here. These updated FMLA regulations go into effect on January 17, 2009.

 

This is in addition to the new 2009 USERRA poster and EEOC poster required for all employers. Most employers should display the posters in Spanish, as well as English.

 

The new regulations concern three major areas: 

• Update the FMLA regulations to address a number of problems reported by employees and employers
•  Address some conflicts between the U.S. Department of Labor FMLA regulations and decisions by the courts
•  Provide guidelines and regulations for employers granting extended FMLA to military families as required under the required Military Leave Notice.  

 According to Victoria A. Lipnic, Assistant Secretary for the Employment Standards Administration, these changes have been carefully weighed.

“This common sense, balanced rule is the product of a two year-long transparent process involving about 20,000 public comments and reflects the careful consideration of the views of FMLA stakeholders,” said Victoria Lipnic.

 

For most employers, the new FMLA regulations address these issues: 

• Reporting absences
• Right of individuals to waive FMLA
• Employer liability
• Light duty
• Perfect attendance awards 

Under the new regulations, employees must follow the employ’s usual reporting procedures for an FMLA absence. If an employer requires that workers call in 2 hours prior to a shift to report an absence, employees taking time off under FMLA must follow that same rule. This is a big change from the previous regulations, which permitted employees to report the absence to the employer up to two days afterwards.

 

The new notice regulations make an exception for unusual circumstances, as when an employee has a heart attack or stroke on the way to work.

 

Under the new regulations, an employee with an FMLA claim may settle out of court with the employer, even without approval by the U.S. Department of Labor or a court. However, employees are not permitted to waive their FMLA rights in advance. A collective bargaining agreement that gave up FMLA rights for all union employees, would still be illegal.

 

The new regulation also holds employers liable if an employee suffers individual harm because the employer did not follow the FMLA rules.

 

In at least two court cases, judges have ruled that an employee can use up his or her 12-week allotment of FMLA while on a “light duty” assignment. The new FMLA regulations overturn those decisions. Employers cannot count “light duty” assignments as any portion of the 12 weeks of FMLA. An employee who has been on “light duty” for 12 weeks due to a non-work-related injury, is still entitled to an additional 12 weeks of unpaid FMLA leave. According to the U.S. Department of Labor “If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.”

 

It has long irked many employers and coworkers that someone who took 12 weeks of unpaid FMLA leave could receive a “perfect attendance” award and bonus for the year. The final rules now permit an employer to deny perfect attendance awards to those who take FMLA leave. However, if the employer gives perfect attendance awards to workers on other types of leave, then the awards must also go to those on FMLA leave. 

 

Check back on Friday, when we will have the latest info on the U.S. Department of Labor regulations for FMLA leave for military families.

 

 

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