This week the Department of Labor (DOL) released proposed revisions to the Family and Medical Leave Act (FMLA) regulations. Interested parties have 60 days, until April 11, 2008, to consider and comment on the proposed changes before they become effective. An effective date has not been announced, but it is recommended employers use this time to familiarize themselves with the proposed changes. The proposed changes are extensive and the following list highlights the most significant changes. The DOL proposal:

• Clarifies the rules regarding substitution of paid leave;

• Permits employers to count missed required overtime against an employee’s FMLA leave entitlement;

• Allows employers to disqualify employees for participation in a bonus or award program when the employee failed to meet the qualifications because of his/her FMLA leave;

• Authorizes employees to voluntarily settle past FMLA claims without obtaining Court or Department of Labor approval;

• Amends an employer’s posting requirements, including annual distribution of the FMLA policy to all employees;

• Significantly changes the employer’s obligations to provide employees with notice of their FMLA rights, approval of leave, and leave available, including a proposed form to replace the existing Form WH-0381;

• Clarifies an employee’s obligation to provide adequate notice of a need for leave;

• Proposes a new, simpler Certification of Health Care Provider form, replacing the existing Form WH-380, and clarifies an employer’s right to complete medical certifications, including directly contacting the medical provider for authentication and/or clarification; and

• Expands the scope of fitness-for-duty certifications.

The proposed regulations are significant in the changes that were not made, including retention of the provisions prohibiting employers from requesting a doctor’s note in connection with FMLA-approved absences and keeping the minimum leave increments for employees on intermittent leave intact.

The Department of Labor is also seeking public comment on a number of issues related to the recently enacted Military Family Leave provisions as set forth in the National Defense Authorization Act as discussed in earlier Lowenbaum Partnership alerts.

If you have questions regarding how and when the proposed revisions to the FMLA will impact your business please do not hesitate to contact any of the lawyers at The Lowenbaum Partnership, L.L.C.

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