labor lawAdivision of labor law center

There is a new set of proposed updates to FMLA (Family and Medical Leave Act) regulations, published by the U.S. Department of Labor on February 11, 2008.

The major changes proposed are new rules for employee notice obligations, employer notice obligations, and creation of Military Family Leave.

The new rules do not go into effect until April 11, 2008, except for those addressing expansion of military leave. They became effective January 28, 2008.

Under one proposed update, employees must follow their company’s “usual and customary” call-in or reporting rules when taking FMLA leave. Employers have said that under the old rules, employees could wait for two business days following an absence to let the company know they were using the time as FMLA leave. Without an earlier notice, employers said, they experienced major disruptions in their operations. There are exceptions for “unusual circumstances.”

Under the second change, more stringent notice requirements are being placed on Maryland employers that will help assure that employees understand their rights under FMLA. Employers have five rather than two days to send workers their eligibility and designation notices.

The new rules help to insure that employees will not be denied FMLA leave on a technicality, according to the Labor Department. If a worker has not filled out a medical certification properly or completely, the employer would, under the new rules, be required to return it to the employee and detail, in writing, what needs correcting. The worker has seven days to correct the problem.

The third change is the expansion of military leave, already in effect under the National Defense Authorization Act of 2008. It allows for 26 weeks of FMLA leave for some military families.

Victoria A. Lipnic, assistant secretary for the Employment Standards Association, said the proposal “preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace.”

FMLA guarantees workers unpaid, job-protected leave in the event of their own serious illnesses or the illnesses of members of the immediate family. It also provides leave to care for a newborn child.

More Maryland FMLA Changes

New tentative changes to the FMLA regulations will encourage better communication between employers, healthcare providers, and workers, according to the U.S. Labor Department.

Employers and others may comment on the proposed new rules until April 11, 2008. The Labor Department first published the rules on February 11, 2008.

To comment, go to http://www.regulations.gov and write them under the keywords “Family and Medical Leave Act” (use quotes, as shown). The comments will be published in their complete form, including whatever contact information is provided. The final FMLA and NDAA rules will be published around the April 11 date.

The changes also take U.S. Supreme Court and lower court rulings into account.

One change proposed states that being on “light duty” cannot be counted toward the time a worker takes on FMLA leave. An employee, in short, could have 10 weeks of light duty and still be entitled to the full 12 weeks of FMLA leave. If a worker is switched to another position during “light duty,” that switch does not affect his or her FMLA reinstatement guarantee. In other words, the worker would be entitled to the job he or she held before being switched to a new, “light duty” position. The changes actually reverse certain court case decisions, at least two of which found that “light duty” assignments could be part of FMLA leave.

A second change strengthens the Labor Department’s position that employees may settle FMLA claims out of court, provided they waive their FMLA rights retroactively. Employees still may not waive those rights in advance, however. In other words, a union contract could not say that employees did not have the right to FMLA leave.

A third change takes into account the decision Ragsdale vs. Wolverine World Wide, Inc., in which the Supreme Court ruled on FMLA leave. The Court ruled that there are some cases in which workers who have taken 12 or more weeks of paid leave are not entitled to another 12 weeks or more of unpaid FMLA leave.

The Labor Department’s Wage and Hour Division is the enforcing body.

The Maryland FMLA law is the program offering you the support you need for critical times. Those times could be good – the birth of a child, an adoption, receiving a foster child into the home. They could be difficult – a loved one involved in an accident or a serious illness in the immediate family.

In either case, the program allows you up to 12 weeks of leave (unpaid) if you fall under the allowable circumstances. If you work for a private business, your employer is obliged to follow the Family and Medical Leave Act if the workplace employs 50 or more people. Pubic employees and teachers are eligible even if staff sizes are smaller than 50.

The Maryland FMLA law is there to help when the stresses of family life – both the good and the bad, from birth to illness – make it necessary to turn away from work for a while. Between Mother’s Day and Father’s Day it’s not unusual to consider the needs of the family a little more than usual, and that makes it a useful time to consider the law.

Workplace medical coverage premiums are paid by payroll deductions. What happen when a worker is on unpaid leave? The employer pays the premium and declares it an advance on the worker’s future paychecks. When returning to work, the payroll deductions during the unpaid leave are taken from the paycheck.

Under Maryland FMLA you and your employer must follow certain guidelines. For example, the employer must keep you informed. He or she must provide you with a notification in writing immediately, letting you know how to keep in touch to insure you maintain your good status with the workplace. You in turn must respond to those instructions promptly.

The Maryland FMLA poster should be prominent at every jobsite.