• Department of Labor Issues Updated FMLA Regulations
  • January 7, 2009 | Author: Scott M. Gilbert
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • On November 17, 2008, the United States Department of Labor (DOL) published updated regulations pertaining to the Family and Medical Leave Act (FMLA) which will become effective on January 16, 2009. Changes have been made throughout the regulations, but the most significant ones include those related to the new military leave provisions of the FMLA, and these will be the focus of this alert.

    The updated regulations identify eight instances when leave is required for a “qualifying exigency.” They also clarify that leave to care for a current member of the Armed Forces who has a serious injury or illness is only required where the condition in question is “incurred in the line of duty on active duty.” The regulations also define the parameters under which an employee may qualify as a caretaker for a covered servicemember.

    Also included in the updated regulations are instructions that attempt to define how the leave allowed to care for a covered servicemember interacts with traditional 12-week leave that an employee might need. In addition to the traditional bases for leave, an employee may also qualify for up to 26 weeks of leave during a 12-month period to care for a covered servicemember. The new regulations clarify that this leave period begins on the first day that an employee takes leave under this provision, and ends 12 months after that date, regardless of the method used by an employer to calculate an employee’s traditional 12-week leave benefit. However, the remainder is forfeited if the employee does not use the entire 26 weeks during the 12-month period.

    Despite this forfeiture provision, the 26-week leave benefit is applied on a “per-covered-servicemember, per-injury basis.” Consequently, an employee is entitled to a new 26-week leave for any new qualifying injury, or if the leave is related to a different covered servicemember. The exception to this rule is that an employee may not take more than a total of 26 weeks of leave within any single 12-month period, and this covers both traditional and military-based leaves. This provision is somewhat confusing, but is most likely meant to clarify that an employee may only take a single 26-week leave period for any one qualifying basis, even if the need for leave extends beyond the 12-month period. If, on the other hand, a new, distinct injury or illness occurs, or a new servicemember is injured, the employee is entitled to a new 26-week leave period if he or she has not yet taken the full allotment of leave during the relevant 12-month period.

    Finally, the regulations reassert the DOL’s position that it is the employer’s obligation to designate leave as FMLA-qualifying leave under the Act. The new regulations are detailed and extensive. Employers should accordingly carefully review the updated regulations to ensure that their FMLA policies are compliant, and that they are properly administering employee leave requests.