Supplement Your FMLA Poster
Posted by: John Gilliland
February 26, 2008

As a result of the provisions added to the Family and Medical Leave Act to provide for military family leave, employers need to update their FMLA posters.  Complete posters will be available when final regulations are published.  In the meantime, the Wage and Hour Division has published a sample, brief explanation of the expanded leave.  It could be posted with your current FMLA poster.  A copy of that supplemental statement is at:

                 http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

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More FMLA Changes Coming
Posted by: John Gilliland
February 14, 2008

More changes to FMLA regulations are on the way. On February 11th, the US Department of Labor's Wage and Hour Division published proposed rules in the Federal Register. A complete copy can be obtained through the Wage and Hour Division's website at http://www.dol.gov/esa/whd/

The proposed changes will impact on many of the key aspects of the FMLA rules, including:

* Employer and employee notices

* Nonconsecutive periods of service in determining "eligible employees"

* Fitness for duty certification

* HIPAA and contact with health care providers

* Substitution of paid leave

* Poster revisions

Comments concerning the proposals must be received by the Wage and Hour Division by April 11, 2008.

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Expansion of FMLA Approved
Posted by: John Gilliland
February 08, 2008

There is something that has not been getting much attention in the popular press, but is filling the news sources for employment lawyers. That is that, at the end of January, President Bush signed a law which expanded the leave available under the Family and Medical Leave Act ("FMLA") to include leave for certain family members of an individual in the Armed Forces, including a member of the National Guard or Reserves.

First, employers must provide up to 26 workweeks of leave to a qualifying employee of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. A "qualifying employee" includes the "spouse, son, daughter, parent, or next of kin" of the service member.

Second, employers are required to provide leave for "any qualifying exigency ... arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation." "Any qualifying contingency" has not yet been defined but it is expected to include a service-members deployment and leave from active duty. This provision is not effective until the U.S. Secretary of Labor issues final regulations defining "any qualifying contingency."

Most of the rest of the FMLA is not changed.

More information concerning the changes can be found at the Wage and Hour Division's website. Go to: http://www.dol.gov/esa/whd/fmla/index.htm.

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Release of Claims: Fourth Circuit Invalidates Employee's Waiver of FMLA Rights
Posted by: Jennifer Milligan
March 06, 2006

It is a common practice to require a departing employee to sign a severance agreement and general release before giving the employee a severance package.  That agreement will generally include a provision that releases an employer from any legal claims the employee may have against your company.  The 4^th Circuit ruled that a U.S. Department of Labor (DOL) regulation which prohibits employees from waiving or releasing their rights under the FMLA without court or DOL approval applies to retrospective and prospective claims and it prevents both the waiver of both substantive and prospective rights.  Therefore, a release that includes a waiver of FMLA rights without prior approval from a court or the DOL, does not constitute a valid waiver of the employee’s FMLA rights.  Taylor v. Progress Energy, Inc., 415 F.3d 364 (4^th Cir. 2005). 

This case illustrates the necessity of being cautious when you ask an employee to release you from FMLA claims.  The 7^th Circuit (which covers Indiana) isn’t bound by the decisions of the courts in other circuits, so it may or may not follow the 4^th Circuit’s reasoning.  The 7^th Circuit hasn’t addressed this issue yet.

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Tools for Managing Suspected Abuse of FMLA Leave
Posted by: Jennifer Milligan
March 06, 2006

One of the questions we often get from employers is how to control FMLA leave because it seems so easy for employees to take leave under the FMLA.  After thinking this question through, we feel the following tools can be used to manage suspected abuse of FMLA leave.

1. Obtain as much information as possible directly from the employee when the employee requests leave.
2. Provide the employee’s health care provider with a list of essential functions rather than relying on the employee to provide the information.
3. Insist on complete medical certifications. 
4. Require certifications as often as permissible.
5. Use an employer designated health care provider to consult with on questionable cases.
6. Require an employee to use paid time off for FMLA leave.

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