The United States Department of Labor, the agency charged with the task of interpreting the Family Medical Leave Act (FMLA), issued final revised regulations to the Act on November 17, 2008. The regulations will take effect on January 16, 2009, just days before President-elect Barack Obama takes office. The regulations mark the first major regulatory update of the legislation in more than thirteen years, and many believe signals the beginning of some significant changes to the Act. Although the new regulations appear employer-friendly, the President-elect has proposed expanding coverage of the Act to smaller employers and allowing leave under a broader range of circumstances, including for elder care, domestic violence, and for children’s educational activities, thereby creating a more employee-friendly scheme.
Most significantly, the regulations implement statutory amendments signed into law by President George W. Bush during January 2000, known as the National Defense Authorization Act, allowing family members of wounded military personnel to take up to twenty-six weeks of unpaid leave to care for them during rehabilitation. Other changes include: allowing employers to require “fitness-for-duty” evaluations for workers who have taken FMLA time and are returning to positions that could endanger themselves or others; adding requirements regarding the number and timing of doctors’ visits to help determine what constitutes a qualifying FMLA condition; allowing businesses to exclude from perfect attendance awards employees who have taken time under the Act; stopping employers from charging FMLA time to employees who come back to work but can only perform limited duties; prohibiting an employee’s direct supervisor from getting an employee’s medical information when a medical certification is needed under FMLA; and forcing workers to tell employers in advance when they require FMLA time, rather than allowing them to do so up to two full days after failing to report for work.
Employers should review their policies to ensure continued compliance.