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. It remains to be seen whether courts will defer to the DOL on this issue if the proposed regulations are finalized.
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