DOL Revising Family and Medical Leave Act Regulations

So much for an alleged order telling federal agencies not to issue major rules during the final six months of George W. Bush's presidency. If any doubt remained, the U.S. Labor Department dispelled it today with a 762-page rule revising its regulations implementing the Family and Medical Leave Act. Meanwhile, the U.S. Department of Homeland Security is about to publish a 204-page security rule for freight and passenger railroads, although most railroads already do what that rule requires, according to the Association of American Railroads.

The FMLA rule will take effect Jan. 16, 2009. Its biggest change is new provisions for family leave by military personnel, which was required by the National Defense Authorization Act for FY2008. The rule also aligns the law with recent U.S. Supreme Court rulings. Family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty will be able to take up to 26 weeks of leave in a 12-month period, and families of National Guard and Reserve personnel on active duty will be able to take FMLA job-protected leave to manage their affairs -- "qualifying exigencies" that are defined as (1) short-notice deployment, (2) military events and related activities, (3) child care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities where the employer and employee agree to the leave.

The National Association of Manufacturers applauded the rule. "These new regulations are long overdue," said NAM President/CEO John Engler. "The changes restore the balance intended by Congress between employers' needs for employees and employees' need for time to attend to important family and medical issues. Employees will be able to take time off for important family needs like the birth or adoption of a child, to care for a family member with a serious illness, or to seek treatment themselves when seriously ill." NAM and other employer groups maintained the law was confusing and difficult to interpret, but unions argued leave was not being granted or administered fairly in some cases.

"This final rule, for the first time, gives America's military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty," Labor Secretary Elaine Chao said Friday. "At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers."

The "clarity" she mentioned includes consolidating all employer notice requirements into one section of the regulations; requiring employees to follow their employers' normal and customary call-in procedures to provide FMLA leave notice, unless there are unusual circumstances (to fix a provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner); and offering guidance on the definitions of "serious health condition." If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Also, "periodic visits to a health care provider" for chronic serious health conditions are clarified: The term means at least two visits to a health care provider per year. Under the final rule, time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee's right to job restoration is held in abeyance during the light-duty period. An employee voluntarily doing light-duty work is not on FMLA leave, the rule states.

The AFL-CIO did not welcome the changes, except for the extension of leave rights to military families. Debra L. Ness, president of the National Partnership for Women & Families, issued a statement Friday saying the final rule is "bad news for workers, but mostly good news for military families." Ness added, "We are delighted that military families will finally get some of the additional support they need and deserve. The National Partnership fought hard to expand the FMLA to extend unpaid family and medical leave for up to six months for the families of wounded military personnel and to allow military families to use FMLA leave to help ease the strain of a family member's deployment. With these regulations in place, military families should be able to use the leave they need when they need it. While we would have liked the regulations to allow regular active duty military family members to use FMLA leave while a servicemember is deployed, these measures still can make a real difference for families that have made great sacrifices and are under enormous stress. It is welcome and badly needed. This is the first-ever expansion of the FMLA, but we hope and expect that it will not be the last."

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