Enacted in 1993, the federal Family and Medical Leave Act (FMLA) provides that covered employers must grant eligible employees up to 12 weeks of unpaid leave within a 12-month period for (1) the birth and care of a newborn child, (2) the adoption of a child, (3) the care of an immediate family member with a serious health condition or (4) medical leave when the employee himself or herself is unable to work due to a serious health condition.

Recently President Bush signed into law the National Defense Authorization Act of 2008 (NDAA), which extends the FMLA to allow leave in certain circumstances to care for a family member who has served in the Armed Forces. Some of the provisions of the NDAA are effective immediately, and employers should amend their policies to reflect these new provisions.

In addition, as the result of complaints from both employers and employees, the Department of Labor (DOL) has recently begun the process of making substantial revisions to the FMLA’s implementing regulations for the first time since the FMLA was enacted. The DOL recently issued a Notice of Proposed Rulemaking proposing numerous changes to the FMLA’s implementing regulations, and calling for public comment before the regulations become final. In addition to certain minor changes and general reorganization of the regulations for ease of reference, the draft regulations propose numerous substantive changes to the current regulations, the most pertinent of which are summarized and contained in the chart, which is available if you follow the link below.

The DOL’s proposed regulations also leave certain major issues unaddressed. Most significantly, with respect to intermittent FMLA leave, numerous comments were generated during the comment period on the issue of whether an entire shift should be chargeable as FMLA leave to an employee who takes intermittent leave and has a job that precludes commencing work midway through a shift (e.g., a flight attendant who takes one hour of leave, causing that employee to miss a 12-hour scheduled flight assignment). While the DOL has proposed no changes to the current regulations at this time, it seeks additional comment from the public on this issue and what language should be included in the final rule, if any. 

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