March 2009

Granting leave

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New FMLA regulations are in place

by Jason C. Kim and Nineveh Alkhas
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The U.S. Department of Labor (DOL) issued its final regulations clarifying and interpreting significant changes to the Family and Medical Leave Act (FMLA) of 1993; the changes took effect Jan. 16. As you probably know, FMLA is the federal law that provides eligible employees the right to take up to 12 weeks of job-protected, unpaid leave for absences that, until these recent changes to FMLA, only stemmed from reasons such as caring for one's serious health condition or his or her immediate family members or for the birth or placement of a child.

The final regulations recently have been the subject of significant discussion following DOL's initial proposed changes to FMLA in February 2008. Those proposed changes were highlighted in "A new FMLA," May 2008 issue, page 40.

The new regulations were developed in response to the more than 4,600 public comments received after the proposed regulations were published and address the passage of military leave provisions in the National Defense Authorization Act (NDAA) for fiscal year 2008, multiple court decisions invalidating portions of DOL's former regulations, DOL's 15-year experience enforcing and administering FMLA, and extensive discussions with various stakeholders.

The final rules are intended to clarify existing provisions and alleviate the friction between employers and employees that resulted from previous ambiguities and inconsistencies. Although only time will tell whether DOL accomplished its objectives in formulating the final regulations, one thing is clear: Your obligations as an employer have changed, and you need to be prepared to address these changes when...

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