DOL Issues New Family, Medical Leave Changes

By Bill Leonard Nov 14, 2008

After more than two years of collecting data and drafting revisions, the U.S. Department of Labor (DOL) has released the long-awaited final changes to regulations governing the Family and Medical Leave Act (FMLA). The final rule revisions, which were set to appear on the Federal Register on Nov. 17, 2008, will take effect on Jan. 16, 2009, and help clarify employer and employee responsibilities under the law.

Prior to publication, the DOL placed a link to the 762-page rule revision on the department’s web site. Attorneys and business-related groups throughout the country began poring over the document to analyze the changes.

The immediate reaction was that DOL officials had made only modest changes to the proposed set of rules, which were released in February 2008.

“We are taking a close look at the final regulations and comparing them with the proposed changes,” said Lawrence Lorber, a partner in the labor and employment practice area of the Washington, D.C. office of Proskauer Rose LLP. “At first glance, it appears there aren’t any changes that are radically different from the proposed regulations.”

Officials from business-related groups such as the Society for Human Resource Management (SHRM), the U.S. Chamber of Commerce and the National Association of Manufacturers stated that although the final rules don’t differ much from the DOL’s original proposal, the rule revisions still shed important light on how the FMLA is to be applied in the workplace.

Said SHRM COO China Gorman: “SHRM expects that changes by the Department of Labor to the Family and Medical Leave Act will provide much needed clarity to the rules, allowing for smoother implementation in the workplace. HR professionals welcome these new rules, especially the added support for our nation’s military families, because they will restore the balance intended by Congress between employers’ needs for employees, and employees’ need for time to attend to important family and medical issues.

This landmark piece of legislation has presented challenges in the workplace due to vague and confusing regulations which have allowed for misuse of leave, unfairly burdening colleagues forced to cover the unpredictable absences of their co-workers. While additional improvements are still needed, this rule strikes the right balance, preserving the Act’s critical benefits for employees and providing HR professionals and the organizations they support with greater clarity as they implement this law.”

Continued Gorman: “The Society for Human Resource Management, as Chair of the National Coalition to Protect Family Leave (NCPFL), is committed to continue working with public policy decision makers to improve this critical law for employers, employees and their families.”

“The new rule does some good things, and we welcome these changes,” said Mark Freedman, director of labor policy for the U.S. Chamber of Commerce. “We do wish that it had done more, but the DOL has taken some important steps to restore the balance of employer and employee obligations under the statute.”

Some family advocacy groups weren’t happy with the final regulations, however.

“The new FMLA regulations for workers take us in the wrong direction, and are harmful and unnecessary,” said Debra L. Ness, president of the National Partnership for Women and Families. “They will restrict access to protections workers have relied on for 15 years, protections they need now more than ever, with the economy in deep trouble and families struggling terribly.”

DOL officials said that the department received more than 5,000 comments on the proposed changes during the public comment period, which ended April 11, 2008. It took the department nearly six months to go through all the public comments and draft appropriate responses.

The final regulations implement the expansion of the FMLA for military families, which was passed by Congress and signed into law by President Bush in January 2008. According to Lorber, the new regulations governing the FMLA leave for military families and caregivers might receive the most attention from attorneys and employers—“just because they’re new.”

Under the FMLA expansion, employers are required to offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military personnel. Employers must provide 12 weeks of FMLA leave to the immediate family members (spouses, children or parents) of Reservists and members of the National Guard who have “qualifying exigencies.”

The DOL’s definition of “qualifying exigencies” is included in the final regulations and will affect any employer who employs military Reservists and members of the National Guard, Lorber said.

“There is a lot of interest in the term because it definitely will have an impact on how employers must approve FMLA-mandated leave,” Lorber said.

The new rule defines “qualifying exigencies” as (1) short-notice deployment, (2) military events and related activities, (3) child care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

The revised regulations do not include portions of the old rule that the Supreme Court struck down in Ragsdale vs. Wolverine Worldwide Inc. The old regulations improperly deemed some employees eligible for FMLA leave when employers failed to follow the rules for designating leave as FMLA, according to the Supreme Court.

The regulation finalizes the DOL’s longstanding position that employees may waive their past FMLA claims voluntarily without court or departmental approval, even though this position has been rejected by at least one appeals court.

While the rule retains the six individual definitions of “serious health condition,” the revisions provide guidance on some regulatory matters. First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the incapacity. Second, it defines “periodic visits to a health care provider” for chronic serious health conditions as at least two visits to a health care provider per year.

Bill Leonard is senior writer for SHRM.


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