FMLA to Get Regulatory Makeover on Jan. 16

Mostly right, I guess, given the composition of the current administration.

Much indeed has been made of Bush’s so-called “midnight regulations,” which no doubt face reversal under Obama and the Democratic Congress, but one set of regulations looks to be ensconced for a while. That would be the Final Rule issued Nov. 17, and taking effect next Jan. 16, to expand and clarify the Family and Medical Leave Act (FMLA).

Since 1993, FMLA has afforded workers with health care and family needs the option to take up to 12 weeks of unpaid leave, either consecutively or intermittently. The Final Rule keeps this option intact but shifts more of the notification and certification responsibility to the employees themselves. For the first time, it even gives employers the right to verify the health provider’s certification of the employee’s condition and treatment, but only to the extent of verifying the provider’s signature and whether he or she actually issued the certification.

Too much on that already, but the main idea is that employers, after two years of input to the Department of Labor, got what they wanted in terms of ending employee (alleged or perceived) abuse of FMLA.

The other big part of the Final Rule is that it adds two categories of leave for relatives of service members. One category affords 26 weeks of unpaid leave to tend to an injured service member (certain conditions apply, of course), and the other category provides up to 12 weeks for certain “exigencies,” for instance, to join a service member when he or she is home on leave or when he or she is preparing to be deployed.

Unions and employee advocates are naturally cheering the military component but deriding the new employee notification and certification policies.

At any rate, it will take a long time to go about changing or reversing these new regulations and clarifications, though President-elect Obama has already announced he wants to expand FMLA to employers with just 25 or more employees in a 75-mile radius (down from the current 50). He also wants to pass legislation mandating that all employers allow paid leave.

We’ll just have to wait and see as a more employee- and union-friendly administration takes over, so we can then “fly left.”

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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