DOL Issues Long-Awaited Proposed FMLA Regs

After many years of promising changes to the Family and Medical Leave Act (FMLA) regulations, the U.S. Department of Labor (DOL) last week issued new proposed regulations in an attempt to address some of the most common criticisms employers have about the previously issued final FMLA regulations. (You can view the proposed regulations at

(Updated Nov. 4, 2008 –  Proposed changes to the Family and Medical Leave Act (FMLA) regulations were recently submitted to the Office of Management and Budget (OMB) for final review. The new regulations could be included in the Federal Register before the end of November.)

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The highlights of the new proposed regulations include provisions that:

  • fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave;
  • clarify the eligibility requirements for employees who are jointly employed;
  • clarify when an employee’s inability to work overtime exhausts FMLA leave;
  • establish that light duty doesn’t exhaust FMLA leave;
  • allow employers to deny bonuses (such as perfect attendance or hours-worked awards) to employees who don’t qualify for them because they took FMLA leave;
  • allow employers to require employees to comply with the terms and conditions of their paid leave policies to substitute paid leave for FMLA leave;
  • allow employees and employers to voluntarily settle claims of past FMLA violations; and
  • provide very minimal clarification of the definition of a “serious health condition.”

The DOL also is proposing to fix a provision — overturned by the U.S. Supreme Court in 2002 — that said employers can’t deduct FMLA-qualifying absences from an employee’s FMLA leave allotment unless they designate the absences as falling under the FMLA in a timely manner.

The agency wants to replace that provision with one that says employees may have a remedy under the FMLA if they can show that the employer’s failure to designate leave interfered with, restrained, or denied the employee of his FMLA rights and the employee suffered harm as a result.

The regulations — while modest in the broad scheme of things — offer employers a degree of certainty and uniformity that was previously lacking because of the fact that courts across the country had reached different conclusions on many of the issues addressed.

Perhaps the biggest improvement is that the DOL has reorganized the regulations to make it easier for employers to find all of the provisions that relate to a given issue — such as pregnancy leave. The result should be far less confusing than the current regs.

You can learn more about the proposed new regs from a March 19 (2008) audio conference, “DOL’s New Proposed FMLA Regs Explained.” You also can learn more about the recent changes to the FMLA regarding military service members’ family members from a February 27 (2008) audio conference, “New FMLA Leave Rules for Soldiers’ Relatives: What Employers Need to Know.”