Larkin Hoffman Daly & Lindgren Ltd.

The DOL issued proposed changes to the FMLA regulations on February 11, 2008. From February 11 to April 11, there was a two-month public comment period, during which time individuals and groups had the opportunity to inform the DOL of what they thought of the proposed regulations. The DOL is reviewing the comments and the next step is likely the releasing of the final regulations. 

Definition of “Serious Health Condition” remains essentially unchanged. One of the most significant outcomes of the proposed changes to the regulations is the absence of a change. Many individuals and organizations had commented to the DOL that the term “serious health condition” is confusing and requested clarification on the term. The DOL determined that it could not identify an alternative approach to the current definition and left the definition essentially the same. The DOL, however, reorganized the structure of the definition so that “employees and employers can better understand what constitutes serious health condition.”

“Eligible” employee changed with regard to nonconsecutive periods of employment. The definition of “eligible employee” has been the subject of much litigation. The DOL sought comment on how to treat the combining of nonconsecutive periods of employment to meet the 12 months of employment requirement to be eligible for FMLA leave. The DOL’s proposed regulation states that, although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of five years or more need not be counted. 

Two exceptions exist: a break in service resulting from the employee's fulfillment of military obligations; and a period of approved absence or unpaid leave, such as for education or child-rearing purposes, where a written agreement or collective bargaining agreement exists concerning the employer's intent to rehire the employee. In these situations, employment prior to the break in service must be used in determining whether the employee has been employed for at least 12 months, regardless of the length of the break in service.

When an employee is on leave at the time he or she meets the 12-month eligibility requirement, the period of leave prior to meeting the statutory requirement is non-FMLA leave and the period of leave after the statutory requirement is met is FMLA leave.

Clarification on needing to care for a family member with serious health condition. The FMLA provides leave “in order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” In response to the DOL’s Request for Information, the DOL received a number of comments to impose a limitation that the employee be the only individual family member available to care for the family member with a serious health condition. The DOL rejected those comments and clarified that the employee need not be the only individual or family member available to care for the qualified family member to be eligible for leave.

Eligibility for “Bonuses” when employee has taken FMLA leave is clarified. The DOL recognized that the current language of the regulations regarding the receipt of bonuses where an employee had taken FMLA leave was confusing and seemed unfair. The current regulations make a distinction between a bonus for perfect attendance or safety verses a bonus for meeting or exceeding production goals. Under the proposed regulations, an employer may disqualify an employee from a bonus or award predicated on the achievement of a goal where the employee fails to achieve that goal as a result of an FMLA absence. It is important to note, however, that an employer could not disqualify only those individuals on FMLA-qualified leave and allow other employees on other forms of non-FMLA leave to receive such an award without violating the FMLA's non-discrimination requirement.

Change in regulation concerning employee notice requirements for foreseeable FMLA leave. Under the current regulations, an employee must give at least 30 days’ notice when the need for FMLA leave is foreseeable. Notice must be provided “as soon as practicable” if leave is foreseeable but 30 days’ notice is not practicable. “As soon as practicable” is defined in the regulations as “ordinarily…within one or two business days of when the need for leave becomes known to the employee.”

The DOL has proposed some changes to this regulation. First, the DOL proposes to add that when an employee gives less than thirty days’ advance notice, the employee must respond to a request from the employer and explain why it was not practicable to give thirty days’ notice. Second, the DOL proposes to delete the definition of “as soon as practicable.” The DOL believes that it should be practicable for the employee to provide notice of the need for leave either the same day, or the next business day.

Definition of “Qualifying Exigency” in connection with injured members of the armed forces. According to a new law, employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces may take up to 12 weeks of FMLA leave yearly when they experience a “qualifying exigency.” (See Email Alert dated September 2008 for more information regarding laws amending the FMLA creating new leave for employees in military families.)

By its express terms, this provision is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” The DOL has said that they will expedite passage of the new rule. In the proposed rules, the DOL considered whether it would be appropriate to develop a list of pre-deployment, deployment, and post-deployment exigencies. The DOL sought comments on whether a “qualifying exigency” should include making arrangements for childcare; making financial and legal arrangements to address service member’s absence; attending to farewell or arrival arrangements for a service member; attending to affairs caused by the missing status or death of a service member; and other situations. The DOL is currently considering the comments it received regarding this issue.

We can assist in providing FMLA guidance at your company. Once the DOL issues final regulations, your company may need to update its FMLA policies. Please contact us regarding questions concerning the proposed regulations or other FMLA matters. We will continue to provide updates when the DOL issues final regulations.