DOL Proposes Revisions To The FMLA Regulations

On February 11, 2008, the U.S. Department of Labor ("DOL") published proposed revisions to the Family Medical Leave Act ("FMLA") regulations. This is the first time changes have been proposed to the regulations since the law's enactment in 1993. The FMLA requires covered employers to provide up to twelve weeks of unpaid leave in a twelve-month period to eligible employees for the birth or placement of a child for adoption or foster care, or when the employee is unable to work because of the employee's own serious health condition, or the need to care for a spouse, parent, son, or daughter with a serious health condition. Earlier this year, President Bush signed into law the fiscal year 2009 Defense Authorization Act ("the Act"), which expanded the FMLA to provide leave for eligible employees of covered employers to care for covered service members and for any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active-duty status. (See our February 2008 Employment Law Commentary.)

The proposed regulations suggest reorganizing and rewording the titles of the regulatory provisions so that they are statements rather than questions. The DOL also proposes a number of substantive revisions, including amending language in the regulations to clarify that employees may independently settle FMLA claims without the approval of the DOL or a court, a proposal made in response to conflicting circuit court decisions regarding the enforceability of FMLA waivers.1 It remains to be seen whether courts will defer to the DOL on this issue if the proposed regulations are finalized.

Significant changes were proposed regarding employer notice requirements. The proposed regulations have expanded the employer's general notice obligations. In addition to the general posting requirements, employers must distribute to each employee, at least annually, the same notice that is posted. The DOL included a prototype notice as Appendix C to the proposed regulations. The regulations also propose an "eligibility notice" that would require employers to notify an employee of their FMLA eligibility within five business days (as opposed to three business days under the current rule). The DOL has proposed a third "designation notice" that would require employers to notify employees with specific written notice that leave is being designated as FMLA leave within five days of receiving sufficient...