The
Family and Medical Leave Act (FMLA) is undergoing change. In early
2008, Congress made the first significant changes to the law since it
was enacted almost 15 years ago in 1993. Only a few weeks later, the
Department of Labor (DOL) published proposed changes to its FMLA
regulations. A sixty-day public comment period regarding the proposed
regulations ended on April 11, and the DOL is expected to issue final
rules within the next few months
The
FMLA gives eligible workers up to twelve weeks of unpaid leave during
any twelve-month period for such things as treating their own serious
health condition or caring for a newborn or sick family member. It
generally covers employers with fifty or more employees who have worked
for their employer for 1,250 hours over the previous twelve month
period.
On
January 28, 2008, President Bush signed into law the National Defense
Authorization Act for Fiscal Year 2008 (NDAA). The NDAA amends the FMLA
and extends coverage for employees to care for eligible family members
who are military service members and become ill or injured in the line
of duty. The law allows these caregivers to take up to twenty-six weeks
of unpaid leave, more than doubling the amount of time an eligible
employee could have previously taken under the FMLA.
Just two weeks after the NDAA became law, the DOL published hundreds of pages of proposed changes to the FMLA regulations.
While
the proposals would not make any sweeping changes to the 1993 law, they
may serve to clarify a law that many employers and employees have found
complex and many human resources professionals have found difficult to
administer. One of the most significant changes would be to address the
controversial Fourth Circuit Court of Appeals decision in Taylor v. Progress Energy
, 493 F.3d 454 (4th Cir. 2007), where the Fourth Circuit held that
an employee and employer may not independently settle past claims under
the FMLA without the approval of the Department of Labor or a court.
The proposed regulations reject the Fourth Circuit's holding and
explicitly permit employees and employers to voluntarily agree to the
settlement of past claims without having to obtain permission from the
DOL or a court.
If
you have questions about how these changes and proposed changes to the
FMLA could affect your business, contact your general counsel or Amy McAndrew at
mcandrewa@pepperlaw.com or 610.640.7824.
