DOL Publishes Both Adopted and Proposed Changes to FMLA

February, 2008

After seeking public comment on what needs to change with the Family Medical Leave Act (FMLA), the Department of Labor (DOL) has finally proposed a set of rule changes. The FMLA regulations have not been updated since 1993 when they were first enacted and employers have become increasingly frustrated by certain provisions in the regulations, including the use of intermittent leave, defining a serious health condition, and the medical certification requirements. The proposed changes seek to clarify and enhance the FMLA regulations.

The proposed changes include: adding language regarding the time frame for seeking medical treatment under the "serious health condition" requirement,  defining the steps an employee must take to use intermittent leave, adding language stating when a medical certification is incomplete, notice requirements to the employee when the certification is incomplete, the consequences an employee faces and the process employers need to follow when a certification is incomplete or not returned within the requisite time frame, a revised medical certification form, and provisions allowing employers that offer "perfect attendance"  bonuses to include FMLA in the determination of such bonuses. 

Aside from the proposed changes to FMLA, on January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA) which amends FMLA to allow a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who 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."  This amendment is effective immediately and employers are encouraged to make good faith efforts to comply with the provisions of the NDAA while the Department of Labor prepares guidelines for compliance.  Eligible employers should follow the normal FMLA procedures for administering this type of leave until the Department of Labor provides additional guidance.  Cascade recommends employers update their family leave documents, including their handbook policy, to include this type of leave.

A second amendment was made which permits an employee to take FMLA leave for "any qualifying exigency (as yet to be defined by the Secretary of Labor) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation."  This amendment is not effective until the Secretary of Labor issues regulations defining a qualifying exigency.

Cascade will keep Members updated as more information becomes available regarding both the proposed and adopted changes.


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