New FMLA Regulations: How They Affect Employers & Employees

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The U.S. Department of Labor (DOL) has published new regulations concerning the Family Medical Leave Act (FMLA). Some groups are pleased with the changes; others are not. Here's how the changes may affect you.

Family Medical Leave Act

The FMLA was enacted into law in 1993 by former President Bill Clinton. The Act covers employers to grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

  • For the birth and care of the newborn child of the employee;
  • For the placement with the employee of a son or daughter for adoption or foster care;
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Although courts have decided many cases interpreting FMLA regulations since 1993, the regulations themselves haven't seen any major changes since then. Until now.

Changes to FMLA

The DOL has published a final rule updating the current regulations which will take effect on January 16, 2009. Some of the major changes affect members of the Armed Forces and include:

  • Permitting a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."
  • Permitting an employee to take FMLA leave for "any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation."

The changes also:

  • Require employees to follow their employers' call-in procedures for reporting absences when notifying employers of their need for FMLA leave. In the past, employees had up to two days to inform their employers that they would be taking FMLA leave. Employers also now have five days, increased from two, to grant or deny leave.
  • Prohibit employers from counting "light duty" work as FMLA leave.
  • Remove penalties for employers who fail to designate FMLA appropriately.
  • Require employees who take intermittent leave to complete "fitness for duty" evaluations before returning to work.
  • Allow employees to settle or release FMLA claims without court or DOL approval.

For additional information, see the DOL's website at http://www.dol.gov/whd/whd/fmla/.

Legal experts who have analyzed all of the changes seem to agree that they are a mixed bag for employers and employees alike. If those changes result in an adverse employment action for you, contact an experienced employment law attorney to discuss your situation and evaluate your options. Consultations are free, without obligation and are strictly confidential.

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