The Department of Labor (DOL) issued a final rule significantly changing, for the first time in 15 years, the Family Medical Leave Act (FMLA).  While the new regulations, which become effective January 16, 2009, benefit wounded military service members, they are generally favorable to employers and curtail the right of employees to take family and medical leave.  Key changes include:

1. Medical Certification Process – Nearly any employer representative, except the employee’s direct supervisor, can obtain detailed information about the employee’s illness directly from the employee’s healthcare provider, without using a medical professional or obtaining the employee’s authorization.  An employer must put any medical certification deficiency in writing and give the employee one week to provide the information. 
2. Military Leave – The new regulations increase unpaid leave for wounded military service members or relatives caring for them, from 12 weeks to six months per year.  Eligible caregivers are expanded to include grandparents, aunts, uncles and first cousins in addition to spouses, children and parents. FMLA may be used for “any qualifying exigency” related to a covered family member’s active duty, which includes a child’s education and other reasons.
3. Employee Notice – Employees must provide advance notice of FMLA leave to their employer, rather than a two day notice of the FMLA-qualified sick day.  Notice must be given in the same method used for non-FMLA sick calls (usually hours prior to the employee’s shift), except for unusual circumstances.
4. Employer Notice Requirement – Employers have up to one week to notify employees of their rights under the FMLA, an increase from two days under the current regulations.
5. Waiver of Rights – The new regulations clarify that employees may voluntarily waive retroactive FMLA rights in a settlement, but prospective rights under the FMLA may not be waived.
6. Taking Leave – Employers are prohibited from counting “light duty” against FMLA leave.  Employers may still require employees to take accrued leave, however employees may also choose to do so where consistent with company policy.
7. Fitness-for-Duty Certification – Employers are permitted to use “fitness-for-duty” certifications to show that a returning worker is able to perform essential functions of the job.  In addition, employers may use “fitness-for-duty” certifications to determine whether an employee is eligible for intermittent leave.

For information on The Employment Law Group® law firm’s Employment Discrimination Law practice, go to http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.  The final 200-page FMLA rule is available at: http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

This entry was posted on Friday, November 21st, 2008 at 12:46 pm and is filed under Family and Medical Leave Act. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.