FAMILY AND MEDICAL LEAVE ACT (FMLA) CHANGES
By Sharon G. Hobbs

On January 28, 2008, the President signed the National Defense Authorization Act, the first expansion of the FMLA since its adoption in 1993. FMLA is the Federal law which generally allows twelve (12) weeks per year of family or medical leave to employees who have worked for at least 1250 hours in a twelve (12) month period for an employer with fifty (50) or more employees within a seventy-five (75) mile radius.

The new law provides twenty-six (26) weeks of FMLA leave for an employee who is a spouse, child, parent, or nearest blood relative caring for a member of the military who has suffered an injury or illness while on active duty that may render the person unable to perform the member’s military duties. This provision was immediately effective as of January 28, 2008.

The second leave benefit under the new law provides twelve (12) weeks of FMLA leave to an employee due to the employee’s spouse, child, or parent being on active duty or having been notified of an impending call or order to active duty in the military. Leave may be used for “any qualifying exigency” arising out of the service members current active duty or because a service member is notified of an impending call to active duty. This provision will not be effective until the Department of Labor (DOL) issues final regulations defining “any qualifying exigency.”

Just two (2) weeks after the new law passed, on February 11, 2008, the DOL published proposed changes to the FMLA regulations originally issued in 1995. These new proposed regulations primarily address intervening court cases, ambiguities in the original law, and other issues which have arisen since the 1995 regulations were adopted. It may take up to six (6) months or even longer after the February publication of the proposed rules for the new final rules to become effective.

The new proposed rules do some tinkering with the definition of serious health condition. The new proposed rules would also make changes to the medical certification process including the possibility of employers being able to contact health care providers directly to authenticate and clarify medical certifications after the employee has been given a chance to get the deficiencies cured himself or herself. The new proposals require a notice and additional seven (7) days for the employee to provide the certification if it is incomplete or not returned on time. The new proposals would also allow the employer to require recertification every six (6) months when a condition lasts for a longer period of time.

CONCLUSION:
Employers should immediately inform employees of the new leave right to care for an injured spouse, child, parent, or next of kin. Employers should also be prepared to issue notices and otherwise comply with the new leave for “qualifying exigencies” and other changes when final regulations are issued.

Sharon Hobbs practices in the areas of business law, employment law and estate planning.

This article is a general discussion of legal issues and is not intended to be legal advice. We would be pleased to review the specific facts and law regarding any given legal matter.