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New Proposals for FMLA

By David M. Goldman

The Department of Labor has released proposed revisions to the Family and Medical Leave Act regulations. If adopted, the changes would significantly alter the current FMLA procedures. The proposals were prompted by continued tension between employers and employees concerning intermittent leave and the Supreme Court's 2002 Ragsdale v. Wolverine Worldwide Inc. ruling, which invalidated a DOL regulation that penalized employers for failure to comply with the technical employee notice provisions of the FMLA regulations.

Coverage Issues

-Some Professional Employer Organizations (PEO's) Not Considered Joint Employers
-Count Employee Prior Service in Determining Eligibility for Leave
-Employees May Continue to "Grow" Into FMLA Leave
-Location of Work site Determined for Long-Term "Joint Employees"
-Common Ailments May be Serious Health Conditions
-Male Employees Protected When Attending Prenatal Appointments With Spouses
-Chronic Conditions Requiring "Self-Treatment" Remain Covered
-Physician Assistants Qualify as Health Care Providers

Employee Leave Entitlements

-Count Holidays When FMLA is Taken in Full-Week Increments
-Employees Seeking Intermittent Leave Must Make "Reasonable Efforts" Not to Disrupt Unduly the Employer's Operations
-No Change to Minimum Increment of Intermittent Leave Rule
-Inability to Work Overtime Protected by FMLA
-Numerous Aspects of "Substitution Rules" Clarified

-Employers may run paid leave concurrently with unpaid FMLA
-Employers must notify employees of paid leave requirements at time of leave
-Employers and employees may mutually agree to supplement disability benefits through use of paid leave
-Employers need not accept less than the FMLA required certifications even when paid leave is substituted
-Employees may continue to decline offers of light duty

-Public Employers May Substitute Compensatory Time for Unpaid FMLA time
-Employers May Consider Attendance Goals in Determining Bonuses and Other Incentive Rewards
-Employers May be Liable for Actual Monetary Losses and other Equitable Relief For Harm -Caused by Interference with FMLA Rights
-Time Spent Performing Light Duty Does Not Count Towards FMLA Entitlement
-Employees May Voluntarily Agree to Settle Past FMLA Claims Without First Obtaining Approval from the DOL or a Court

Employers and employees now have 60 days, until April 11, 2008, to consider and comment on the proposed changes. For a more detailed analysis of this issue please see this article.

Full post as published by Florida Estate Planning Lawyer Blog on February 12, 2008 (boomark / email).