To our clients and friends:
FEBRUARY 22, 2008
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Department of Labor Amends FMLA and Releases Proposed New FMLA Regulations
On February 11, the U.S. Department of Labor published a proposal to update its regulations under the Family and Medical Leave Act (FMLA). The proposed regulations are aimed at providing clarity for both workers and employers about the practical application of the 15 year-old law. The DOL developed the proposed regulations in response to court decisions invalidating portions of the existing regulations, discussions with various stakeholders, and over 15,000 comments received in response to a DOL-issued Request for Information.
The regulations are also designed to facilitate the implementation of legislation recently passed by Congress (the National Defense Authorization Act for FY 2008), which amended the FMLA by providing two new leave entitlements for military service people and their families. Under the legislation, family members of injured military service men and women will be able to take up to 26 workweeks of leave to care for those wounded, and will be able to use FMLA leave because of any qualifying exigency arising out of the fact that a covered family member is on active duty or called to active duty status. DOL is seeking public comment on a wide variety of issues related to these new “caregiver” and “active duty” military leave provisions before it issues the final rule on this new law.
Changes of Particular Significance to Employers
The proposed rules make changes in many other areas, including: (1) clarifying that “light duty” assignments do not count against employees’ FMLA entitlement and changing the rules so that “light duty” assignments will not affect reinstatement rights; (2) removing categorical penalty provisions that imposed liability on employers for failing to follow FMLA notification rules, and requiring employees to show that they suffered actual harm before holding an employer liable; (3) changing the requirements for substitution of paid leave to allow employees to substitute any accrued paid leave (including vacation and personal leave) offered by their employers concurrently with FMLA leave, consistent with the current regulations for the substitution of paid sick leave; (4) allowing employers to disqualify employees from “perfect attendance awards” who are absent due to FMLA leave; (5) making two changes to the certification for “fitness-for-duty,” allowing employers to require that the certification address employees ability’ to perform the essential functions of their jobs and, where there are reasonable job safety concerns, to allow employers to require “fitness-for-duty” certifications before employees can return to work from intermittent leave; and (6) clarifying joint employer definitions relevant to professional employer organizations (PEO), so that a PEO would not be a joint employer with its client if the PEO does not control or supervise the client’s employees and does not benefit from the work performed by the client’s employees.
Where Do the Proposed Regulations Leave Employers?
This alert provides a brief overview of the proposed changes to the FMLA regulations—all employers should familiarize themselves with these potential changes on a more comprehensive level and seek guidance on how the changes could impact their particular organizations.
These proposed changes would not take effect until after the 60-day public comment period concludes, on April 11, 2008. Employers who wish to prepare and submit comments must do so before April 11.
At some point after April 11, likely before President Bush leaves office, the DOL will issue its final rule. In the meantime, employers will be well served to revisit their FMLA policies and practices and consider how they may need to be updated if these proposed regulations are finalized.
The full text of DOL’s proposed rule can be found at: http://a257.g
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For additional information, or for help preparing and submitting comments, please contact the Mintz Levin lawyer with whom you usually work or one of the employment attorneys listed below.
Martha J. Zackin
Katharine O. Beattie
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