Builders and Contractors Exchange
Weekly Bulletin: 28 mar 2008
Just when you thought you understood FMLA, the Rules Change
Since its enactment in 1993, the Family and Medical Leave Act, or FMLA, and the U.S. Department of Labor (DOL) regulations implementing it, have been widely criticized for their complexity. DOL is attempting to clarify FMLA with new regulations this year, but FMLA became even more convoluted early this year when the President signed into law two new FMLA leave categories.
For employers with more than fifty employees, FMLA requires them to give eligible employees up to twelve weeks of unpaid leave a year for a newborn child or newly placed adopted or foster child, to care for a family member with a serious health condition, or for the employee's own serious health condition. From an employer's perspective, the DOL regulations make FMLA difficult to apply for and easy for employees to abuse. Employees complain that the regulations restrict their ability to use FMLA leave. In numerous lawsuits, courts have echoed both sides' criticisms.
On February 11, 2008, DOL proposed new FMLA regulations. Some of the proposed changes may make FMLA easier and less costly for employers to administer. For example, the proposals eliminate the requirement that an employer communicate with an employee's doctor only through the employer's own doctor, and allow the employer to require more information from employees returning to work after FMLA leave. The new regulations are only proposals, though, and may change as DOL continues to accept comments about them through April 11, 2008. It could be several months before final regulations are issued.
Any improvement the proposed regulations might bring for employers, though, is offset by the challenges of administering two new categories of leave for military families. Now, employers must give an eligible employee (1) up to twelve weeks leave for "any qualifying exigency" arising out of the employee's spouse, son, daughter, or parent's active duty with the military, and (2) up to twenty-six weeks of "servicemember family" leave. The "qualifying exigency" leave category does not become effective until DOL issues final regulations defining "qualifying exigency." The "servicemember family" leave, however, became effective immediately. It entitles an employee who is a spouse, son, daughter, parent, or next of kin of a servicemember leave to care for that servicemember while he or she "is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."
For now, there is no guidance on how to apply these new leave categories, though DOL promises on its website that it is "working quickly" to draft regulations. In the meantime, employers are asked to "act in good faith" in providing the servicemember family leave, and must continue to apply the old FMLA regulations to leave requests.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.