Changes And Proposed Changes In The FMLA

In January 2008, President Bush signed into law the National Defense Authorization Act (NDAA) which amended the Family and Medical Leave Act (FMLA) as it relates to military family leave. The NDAA permits the use of up to 26 weeks of FMLA leave during a 12-month period to care for a service member with a “serious illness” who has been injured in the line of duty. It also provides the FMLA’s standard 12 weeks of leave during a 12-month period for a “qualifying exigency” related to a service member’s call to active duty. The NDAA charged the Department of Labor with defining “qualifying exigency” through the DOL’s power to regulate under the FMLA.

On February 11, 2008, the DOL responded to the NDAA by publishing proposed new FMLA regulations. However, not all of the proposed new regulations relate to the new military family leave. Some of the important non-military family leave regulatory changes proposed by the DOL include the following:

Notice When An Employer Designates FMLA Leave

Employers will have to provide employees a much more substantive notice whenever leave is designated as FMLA leave. Employers must provide the notice to employees within five days of having sufficient information to make the determination. The current regulations require the designation notice to be provided within two days, which can be difficult to comply with. However, having more time to designate the leave comes with a price – employers will now be required to inform employees of the precise number of hours, days, or weeks that will be designated FMLA leave within the body of the notice. The more substantive calculations may prove difficult for unforeseeable and intermittent leave requests. The DOL will also require employers to inform intermittent employees every 30 days that their leave is designated and protected under the FMLA and advise the employees as to the amount of FMLA leave taken during the 30-day period.

Contacting The Employee’s Doctor

Employers will be able to directly contact an employee’s medical provider in order to obtain clarification or authentication of FMLA documentation. Current regulations prohibit employers from personally contacting an employee’s medical provider. Instead, employers are limited to communicating with the employee’s medical provider solely through the employer’s own retained medical provider. Even then, the employee must first consent. The DOL is clear, however, that even though employers will now be permitted to contact an employee’s medical provider personally, the employer must still comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy rules. Therefore, employers will need to have employees complete a HIPAA release prior to contacting the employee’s medical provider. This requirement seems reasonable and serves as a layer of protection for employee privacy.

Intermittent Leave

Employees will have to comply with an employer’s usual paid leave call-in procedures before taking unscheduled, intermittent leave under the FMLA except in cases of emergency. The new regulations will make it clear that an employee covered under the FMLA is not entitled to any paid benefits that they would not normally be entitled to under the employer’s paid leave policy. Therefore, an employer will be permitted to deny paid benefits and seek any appropriate, non-retaliatory disciplinary procedures against employees who fail to follow company policy for paid leave. Current FMLA regulations state that an employer cannot enforce FMLA notice provisions that are stricter than the FMLA. This regulatory change is very welcome and will help remove employee perception that FMLA-covered employees are treated more favorably than non-FMLA covered employees who seek the same level of paid leave benefits.

Providing Care For Family Members

The proposed regulations clarify that employers may not place limits on employees who request FMLA protection in order to care for family members with a serious illness. Some employers have taken the position that employees only qualify for FMLA leave in these situations if the employee is the only individual or family member available to provide care. The new regulations will prohibit this practice and its continued use will unlawfully interfere with employee FMLA rights.

Comp Time And The FMLA

The new regulations will permit public employers to run compensatory time concurrently with FMLA leave. This is not currently permitted in the regulations and will serve to treat compensatory time off the same as other paid leave benefits.

Light-Duty Work And The FMLA

Employers will be prohibited from counting an employee’s time worked during a temporary light-duty assignment (typically pursuant to a workers’ compensation injury) against the employee’s 12-week FMLA allotment. The new proposed regulations specify that time worked in a light-duty assignment does not count toward an employee’s FMLA leave.

Waiver Of FMLA Rights

Finally, the proposed regulations will clarify the confusion in the courts as well as among practitioners as to the validity of an employee’s waiver of FMLA rights in a severance or settlement agreement. The DOL’s proposed regulations take the majority view that employers and employees can enter into enforceable agreements that waive an employee’s right to institute litigation regarding past FMLA claims. However, future FMLA claims that may arise after the date of the agreement may not be waived.

Again, these are proposed regulations at this time and are currently open for public comments through midnight, April 11, 2008. The indication from the DOL is that the agency wants to have the final rules in place before the current Bush administration leaves office. If you want to offer comment or your opinion to the DOL about the proposed regulations, please contact the DOL prior to the deadline for public comments.

Go to for directions on how to submit your comments.

NOTE: Reprinted with permission from the Columbus, Ohio law firm of Downes, Hurst & Fishel.

This article appears in the April 2008 issue