The FMLA In A State Of Flux

Michael Newman
January 30, 2008 — 2,353 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.
The Family and Medical Leave Act (FMLA), enacted in 1993, is a federal statute that requires that public agencies and private employers with 50 or more employees provide eligible employees with the right to take family and medical leave in certain circumstances. Generally, the FMLA requires employers to permit eligible employees to take up to twelve weeks of unpaid leave in any twelve-month period for the birth and care of a newborn child, for the placement of a child for adoption or foster care, to care for the employee's child, spouse or parent with a serious health condition, or for the employee's own serious health condition. The FMLA covers more than 75 million employees across the nation, and in 2005 (the most recent year with available data), more than 7 million of those employees utilized FMLA leave. Overall, roughly 50 million employees have taken advantage of the FMLA since its adoption nearly fifteen years ago. While the FMLA has remained virtually unaltered since its inception, that is not likely to be the case for much longer. Both houses of Congress have recently passed legislation that will add to the scope of the FMLA, and on Thursday, January 24, 2008, the Department of Labor sent new proposed regulations under the FMLA to the White House for review prior to publication. Both of these developments have the potential to alter the reach and effect of the FMLA. On January 22, 2008, the United States Senate voted 91-3 to approve a new defense authorization package (H.R. 4986). One week prior, the House of Representatives passed the same bill by a vote of 369-46. In addition to being a $696 billion defense bill that authorizes a 3.5% pay raise for U.S. troops, that bill includes a provision which will expand the protections of the FMLA to cover families of U.S. soldiers. Initially, this addition to the FMLA will allow an employee who has a family-member who has been injured while in the Armed Forces to take up to twenty-six weeks of unpaid leave to take care of that injured soldier, more than the normal twelve weeks currently granted by the FMLA. Additionally, the new legislation will allow employees to take leave "because of any qualifying exigency 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 expansion of the FMLA to include broader protections for the families of service-members is likely to be signed into law by the President, and will then take immediate effect. While there have been indications that federal regulators realize that employers will need at least some time to comply with the new requirements, it will still be important for employers to act quickly and prepare themselves to adapt to the forthcoming changes. Employers should be prepared to educate themselves about these changes, to implement new FMLA policies in accordance with the new law, and to notify their employees about the FMLA's expansion. However, this legislative action is not the only thing that could result in a shake-up of the FMLA in the coming months. At the end of January, Victoria A. Lipnic, Assistant Secretary of Labor, announced that the Labor Department had sent new proposed regulations for the FMLA to the White House for review. These new regulations have been drafted in the wake of a 2006 request for information promulgated by the Department which resulted in over 15,000 comments being submitted to the Department by a multitude of outside sources on a variety of FMLA topics. Once approved by the White House, the proposed regulations will be made public in the Federal Register for a 60-day comment period. Publication in the Federal Register could happen as early as February and most commentators expect that final regulations will be published by the end of the year. While the complete extent of the revised regulations remains a mystery, it is generally anticipated that they will create new guidelines for the medical notification requirements for triggering leave, alter the process for unscheduled intermittent leave, address the interplay between the FMLA and the ADA, and define the term "qualifying exigency" presented in the above-mentioned legislative expansion to the FMLA. These are all areas about which concerns were expressed during the Labor Department's initial request for comments, with the unscheduled intermittent leave issue being the biggest point of friction between employers and employees. According to the Labor Department, the "goal in proposing regulations is to reduce uncertainty for everyone involved in the process" and to "make it clearer for employers, workers, and the medical community." Additionally, while some worker advocate groups have expressed serious concerns about whether employees could lose workplace protections under the new proposed regulations, the Department of Labor has declared that the regulations will not decrease the number of people who can take advantage of FMLA. The intent of the Labor Department is to both avoid allowing employees to abuse the leave act and make sure to avoid injury to those who legitimately have to take leave. Even though the details of the new FMLA regulations will not become known until their publication in the Federal Register, it is apparent that change is on the way and that employers should be prepared to adapt to any changes in the FMLA and to inform their employees of any applicable alterations to the employer's FMLA policy.

Michael Newman

Michael Newman is a Partner in the Cincinnati office of Dinsmore & Shohl LLP, where he chairs the firm's Labor & Employment Appellate Practice Group. He represents a broad range of business clients, both large and small, in the state and federal courts.