Proposed Revisions To FMLA Regulations: The Time To Comment Is Now
Posted by Kendra D. Miller
This month the Department of Labor issued proposed regulations pertaining to the Family and Medical Leave Act of 1993 ("FMLA") in an attempt to reflect case law and statutory developments, as well as to clear up ambiguities that have come to light, during the past 15 years. Some of the most significant proposals are discussed below. Click here to link to an article posted on our web-site that discusses these proposed regulations in greater detail.
--Impact of Failure to Designate: The regulations propose to delete the regulation, previously invalidated by the United States Supreme Court, which provides that if an employee takes a paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement.
--Eligibility Period: The proposed regulations would amend the requirement that an employee be employed by an employer for at least twelve months in order to be eligible for the FMLA to provide that, although the twelve months of employment need not be consecutive, employment prior to a continuous break in service of five years or more need not be counted, with two exceptions.
--Light Duty: The proposed regulations state that time spent on "light-duty" assignments would not be counted towards the total 12 weeks of available FMLA leave.
--Releasing FMLA Rights: The proposed regulations would allow employees to waive their FMLA rights in a contract, in response to case law holding that employees could not release past FMLA claims in severance agreements.
--Comment Re FMLA Amendment Pertaining to Military Leave: The proposed regulations also ask for public comment about final regulations referenced in a prior blog posting regarding an amendment to the FMLA, enacted on January 28, 2008, in Section 585(a) of the National Defense Authorization Act for FY 2008, which provides leave to eligible employees of covered employers to care for injured service members and because of any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty status in support of a contingency operation.
Note that the proposed regulations discussed in this article are not yet final. The public has until April 11, 2008 to submit comments to the DOL about the proposed revisions to these regulations. Visit the DOL's website to view the proposed regulations and to learn how to submit comments. In the meantime, please contact us directly to discuss any questions you may have relating to these proposed regulations.