Caution: language in your FMLA forms may violate GINA

Lexology
Lewis and Roca LLP
Howard E. Cole , Abbe M. Goncharsky and Alexandra G. Gormley
USA
February 28 2012

Last week the U.S. Department of Labor released an updated version of its “Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act)” form (Form WH-380-F, located at http://www.dol.gov/whd/forms/WH-380-E.pdf). This form is to replace the previous version of the form, which will expire on February 29, 2012.

However, the new version of the form still requests information about the diagnosis of the condition that forms the basis of the employee’s request for FMLA leave. This requirement violates Genetic Information Nondiscrimination Act (“GINA”), which strictly limits the disclosure and use of genetic information.

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DOL issues proposed rules to expand FMLA’s provisions

Lexology
Day Pitney LLP
Kevin J. Skelly
USA

February 2 2012

On January 30, 2012, the United States Department of Labor (“DOL”) released a notice of proposed rulemaking to implement a 2009 statute that amended the military family leave benefits available under the Family and Medical Leave Act (“FMLA”).

As we previously posted, in 2008, Congress amended the FMLA to provide eligible employees with covered family members serving in the military with two different types of leave: military caregiver leave and qualified exigency leave. Military caregiver leave permits eligible employees to take up to 26 weeks of leave in a single 12-month period to care for a seriously injured or ill family member currently serving in the military. Qualified exigency leave permits eligible employees (whose spouse, child, or parent is called into active duty) to respond to certain situations that arise because of a call to active duty.

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DOL issues fact sheets on retaliation

Lexology.com
Littler Mendelson PC
Ilyse Schuman
USA

January 4 2012

The Department of Labor’s Wage and Hour Division (WHD) has issued three new fact sheets on unlawful retaliation under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Fact Sheet number 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), briefly discusses the prohibitions, coverage and enforcement issues related to section 15(a)(3) of the FLSA, which makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The fact sheet explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA’s retaliation protections extend to internal complaints as well.

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Employers should insert GINA’s safe harbor language into FMLA and other applicable leave policies and forms

Lexology.com
Bricker & Eckler LLP
Cavett R. Kreps and James G. Petrie
USA
May 23 2011

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other covered entities from discriminating based on genetic information. GINA also prohibits covered entities from requesting, requiring or purchasing genetic information of an applicant or employee. “Genetic information” is broadly defined by GINA and includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that such genetic services were sought, and genetic information of a fetus carried by an individual or an individual’s family member.
If an employer requests medical information from an employee (or his/her health care provider) and the employer receives genetic information in addition to the requested medical information, the employer may be liable under GINA. However, GINA’s regulations provide a safe harbor for employers that inadvertently receive otherwise protected genetic information. Specifically, receipt of genetic information from an employee (or his/her health care provider) may be considered “inadvertent,” and thus, not a violation of GINA if the employer instructs employees and/or health care providers from whom medical information is sought that the employee is not seeking and should not be provided genetic information.

Full Story:

Employers should beware of the Genetic Information Nondiscrimination Act when administering the FMLA

Lexology.com
Pepper Hamilton LLP
Frank P. Spada, Jr.
USA
March 15 2011

The Equal Employment Opportunity Commission (EEOC) finalized its regulations for the Genetic Information Nondiscrimination Act (GINA) on November 9, 2010. These regulations took effect on January 10, 2011 and they prohibit employers from gathering genetic information when certifying an employee’s own serious health condition for leave under the Family and Medical Leave Act (FMLA). The GINA regulations apply both to public and private employers with 15 or more workers. Accordingly, those employers subject to the FMLA, which covers employers with 50 or more workers within a 75-mile radius, all would be subject to the GINA regulations.
Certification Under the FMLA
Pursuant to the Family and Medical Leave Act or similar state laws, employers as a matter of course require that an employee’s health care provider complete certification forms to justify leave requests.
The EEOC regulations provide essentially a “safe harbor” for employers and suggest a model notice that should be included in all certification requests to health care providers for medical information to support an employee’s own serious health condition under the FMLA. The following is suggested as model language for employers to use:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
The model notice is applicable to any situation in which medical information is requested, including those situations not covered by the FMLA.

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Employer’s frequent calls to employee during FMLA leave may create interference with FMLA rights

Lexology.com
Ogletree Deakins
Maria Greco Danaher
USA
February 15 2011

Author page »
Under the Family and Medical Leave Act (FMLA), an employer is prohibited from denying, restraining, or interfering with an employee’s rights to qualified leave. One federal court recently found that an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with the employee’s FMLA rights. Terwilliger v. Howard Memorial Hospital, WDAK, No. 09-CV-4055, January 27, 2011.
The FMLA provides to eligible employees up to 12 weeks of unpaid leave for qualifying conditions, and precludes employers from interfering with an employee’s rights under the Act. Under the regulations associated with the Act, interference includes “discouraging” an employee from using FMLA leave.

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Alcoholism Requires Inpatient Care Or Continuing Treatment To Qualify As An FMLA "Serious Health Condition"

In Their Opinion
Posted on January 25, 2011 by Michael Rigney
AMES v. HOME DEPOT (January 6, 2011)

Diane Ames had a five-year, incident free employment record with Home Depot when she asked her store manager for the company's assistance with her alcohol problem. She enrolled in the company's employee assistance program and was put on paid leave. She was told that she could return when she had a treatment plan, passed a drug and alcohol test, and obtained return authorization. She did so and returned to work within a month. The following month, however, she was arrested for driving under the influence. When Home Depot found out, it required her to schedule an alcohol treatment evaluation. The company gave her several extensions within which to schedule the evaluation. In the meantime, she sought scheduling accommodations from her manager so she could attend her Alcoholics Anonymous meetings, she provided her manager a treatment note from her physician, and she shared many of her other personal difficulties with her manager. During a regularly scheduled shift on December 23, an assistant manager suspected that she was under the influence of alcohol. She was immediately tested. When the company learned that she tested positive for alcohol, it decided to terminate her for substance abuse. Her manager scheduled a meeting with her on January 2 to notify her. She missed the meeting because she began drinking more and checked herself into a hospital on January 1. Home Depot mailed Ames a letter on January 10 informing her of the termination of her employment. Ames filed suit pursuant to the Family and Medical Leave Act and the Americans with Disabilities Act. Judge Coar (N.D. Ill.) granted summary judgment to Home Depot on those claims. Ames appeals.

Full Story: http://www.intheiropinion.com/

New year's resolutions: what employers need to know - and not do - in the new year

Lexology.com
Ward and Smith PA
Jeremy R. Sayre
USA
January 1 2011
All too often, employment laws are not consistent with what many people believe to be common sense. The vast majority of employers mean well and try to do the right thing. However, as the saying goes, "the road to hell is paved with good intentions." Simply stated – it is hard to do the right thing if you don't understand what the law requires. With that in mind, the new year is a good time for employers to be reminded of some of the common mistakes that well-intending employers make. Resolve to think twice if you hear yourself, or your managers, making any one of the following statements:

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Department of Labor broadens definition of “son or daughter” under FMLA

Lexology.com
Barnes & Thornburg LLP
USA June 28 2010

Caring for the child of an unmarried domestic partner will now be covered leave under the Family and Medical Leave Act (FMLA) as a result of a U.S. Department of Labor interpretation letter issued June 22, 2010 which broadens the definition of “son or daughter” under Section 101(12) of FMLA. The DOL issued the letter to clarify the uncertainty as to whether the FMLA applies to child care time for employees who are not legal or biological parents.
In broadening family leave rights, Labor Secretary Hilda Solis reasoned that, “No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”

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US Department of Labor clarifies FMLA definition of ‘son and daughter’

US Department of Labor
Wage and Hour Division
News Release
WHD News Release: [06/22/2010]
Contact Name: Dolline Hatchett
Phone Number: (202) 693-4667
Release Number: 10-0877-NAT

Interpretation is a win for all families no matter what they look like
WASHINGTON — The U.S. Department of Labor today clarified the definition of "son and daughter" under the Family and Medical Leave Act to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.
The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves. The 1993 law also allows employees to take time off for the adoption or the birth of a child. The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the department's Wage and Hour Division, clarifies that these rights, which provide work-family balance, extend to the various parenting relationships that exist in today's world. This action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones.
"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," said Secretary of Labor Hilda L. Solis. "No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."
As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.
"This is a critical step in ensuring that children have the support and care they need from the persons who have assumed that responsibility," said Leppink. "Nothing in the statute or regulations suggests that we should restrict the rights of various individuals who take on that very important role."
The administrator interpretation provides guidance to employers in applying the FMLA's provisions in the workplace and ensures that employees are aware of their rights. Under the act, covered employers must grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period for the birth and care of a newborn child; to adopt or assume care for a foster child; to care for an immediate family member (spouse, child or parent) with a serious health condition; or to take medical leave due to a serious health condition.
For more information on the FMLA and the administrative interpretation, visit the Wage and Hour Division's website, http://www.dol.gov/whd, or call the division's toll-free helpline at 866-4US-WAGE (487-9243).

Legal Questions and Answers on the Swine Flu Pandemic

Workforce Management
By Bennet D. Alsher
November 2009

In reviewing their HR policies, employers must consider how federal and state laws affect pandemic preparedness. These laws include the National Labor Relations Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, Title VII of the Civil Rights Acts of 1964 and 1991, and state workers’ compensation laws. Here are some frequently asked questions on general and legal aspects of the pandemic.

n June, the World Health Organization declared an H1N1 flu pandemic. This means that human-to-human spread has increased and is sustained in the general population. H1N1 is a novel strain of the influenza virus; human beings have little or no immunity to it. Not only did H1N1 rapidly infect Americans, but it also spread throughout the world. According to reports from the Centers for Disease Control and Prevention, 48 states reported widespread influenza activity as of late October. In addition, more than 70 countries have already experienced outbreaks attributed to H1N1, as well as seasonal flu outbreaks.
The H1N1 pandemic creates both danger and opportunity for employers. The danger is obvious: a sick and fearful workforce, days lost to absenteeism, disruption of supply chains, and lost productivity, revenue and profit. But the flip side of danger is opportunity. The pandemic creates an ideal opportunity for management to demonstrate to its workforce that it is proactive and that it cares about its employees.
The swine flu can’t be prevented on a wide scale—it’s here, and it’s all over the world. But you can mitigate its impact on your workforce and, given careful planning, a little bit of luck and some flexibility, your company can and will weather the outbreak. Organizations must take steps now to ensure business continuity, develop succession plans, review and possibly revise human resources policies and—most important—educate employees about the pandemic.

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Defense Bill Extends Military Families’ FMLA Coverage

Workforce Management
November 2, 2009

President Barack Obama has signed into law a Defense Department spending bill that further expands Family and Medical Leave Act coverage for families of employees in the military.
The measure, H.R. 2647, builds on a 2008 law that gave new FMLA rights to military families.
Under the new law, signed by Obama on Wednesday, October 27, employees will be allowed to take up to 12 weeks of leave when a spouse, child or parent on active military duty is deployed to a foreign country. The 2008 law did not explicitly give FMLA leave rights in that situation.
In addition, the law allows employees to take up to 26 weeks of unpaid leave to take care of a child, spouse, parent or next of kin who was discharged from the military and whose military service aggravated a medical condition that existed prior to the service.
While the new law “makes changes around the edges” of the 2008 law and will affect a small number of employees, those changes will be very important to those individuals, said Matt Morris, a legal consultant with Hewitt Associates Inc.
Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.
http://www.workforce.com/section/00/article/26/77/49.php

Department of Labor Issues Final FMLA Regulations

From the Wage and Hour Administration Website:

The revised Final Regulations (PDF) respond to over 4,600 public comments received in response to the Department’s February 2008 Notice of Proposed Rulemaking (NPRM) (PDF) , which proposed changes to the current FMLA regulations. The NPRM was developed in response to several U.S. Supreme Court and lower court cases invalidating portions of the current regulations, the passage of amendments to the FMLA included as Section 585(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), and a comprehensive review of the Department’s fifteen years of experience administering the FMLA, including two previous Department of Labor studies of the FMLA (in 1996 and 2001) and over 15,000 public comments received in response to a Request for Information (RFI) (PDF) published in the Federal Register on December 1, 2006, and summarized in the Department’s June 2007 Report on the RFI (PDF).
The Final Regulations (PDF) implement two important new military family leave entitlements for eligible specified family members:
(1) Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member's active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and
(2) Up to 26 weeks of leave in a single 12-month period to care for a covered servicemember recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.
The Final Regulations (PDF) will become effective on January 16, 2009.

Additional information on the Final Regulations:
Final Regulations (PDF) (HTML)
Press Release
Fact Sheet on the Final Regulations (PDF)
Additional information on the military family leave amendments to the FMLA:
FMLA and the National Defense Authorization Act for FY 2008
Title I of the Family and Medical Leave Act, as amended by the National Defense Authorization Act for FY 2008
Additional information on the FMLA:
Notice of Proposed Rulemaking (NPRM) Website
Assistant Secretary Lipnic's Testimony before the Senate Subcommittee on Children and Families, Committee on Health, Education, Labor, and Pensions (PDF)
Report on the Request for Information Website
FMLA Compliance Assistance Information from the Wage and Hour Division
The Family and Medical Leave Act

http://www.dol.gov/esa/whd/fmla/finalrule.htm

Drug Use Not Grounds for Disability Denial

Workforce Management
August 7, 2008
Drug Use Not Grounds for Disability Denial

An employee may be entitled to temporary total disability compensation even though she tested positive for cocaine use while on a Family and Medical Leave Act absence, an Ohio appeals court ruled Thursday, July 31.
The decision by the 10th District Court of Appeals in State of Ohio ex relatione Alice M. Bogan v. Industrial Commission of Ohio and Tomasco Mulciber Inc. overturned a state Industrial Commission finding.
The commission had ruled that Bogan “voluntarily abandoned her employment” by violating an employee-handbook prohibition against the use of illegal drugs in the workplace or reporting to work under their influence. Therefore, the commission said, Bogan was not entitled to disability compensation.
But on appeal, a magistrate appointed by the appeals court found no evidence that Bogan used drugs on her employer’s property or was working when she tested positive. The magistrate ruled that the Industrial Commission abused its discretion by denying the temporary total disability compensation. [To read the entire article, go to: http://www.workforce.com/section/00/article/25/69/50.php ]

What Trends Are Emerging in Paid Maternity Leave?

Workforce Management: workforce.com May 15, 2008

Q. Are employees still eligible to apply for other jobs or promotional opportunities while on FMLA?

We recently had several new promotional opportunities within our company and more than 50 internal candidates applied, one of whom was a woman on FMLA and not scheduled to return to work until after the posting's close date. She did apply before the deadline and subsequently got the promotion. But many of the male candidates are upset and questioned why she was able to apply while out on leave. How do we resolve what suddenly has become a sensitive issue within our company?—Friction in Administration, services, Omaha, Nebraska

FMLA is silent on this specific circumstance. The regulations generally focus on reinstatement rights (i.e., what happens to the employee's job when she returns to work), not on what happens while she is out on leave. So, in answering this question, we'll have to consider the spirit of the regulation, rather than explicit language.First, under FMLA the reinstated employee has no less right, and no greater right, to the benefits and conditions of employment than if she had been continuously employed during the FMLA period. The federal Department of Labor, which enforces this law, generally takes the broad view that taking FMLA leave cannot be used as a negative factor in employment actions, including hiring and promotions.In your circumstance, if the employee had been continuously employed during the posting period, she would have been entitled to apply. Presumably, since she received the promotion, she was fully qualified for the new position, and would have been given the new job regardless of whether she was on leave. From this perspective, you did the right thing in allowing her to apply.Technically, one could argue that an employee's right to these equal "benefits and conditions of employment" was applicable when she was reinstated, not while she was out on leave. However, you cannot disadvantage an employee on FMLA leave by applying policies that you don't apply to employees taking other types of leave. And, of course, before implementing any type of policy limiting hiring and applying for promotions there are other compliance issues to consider, such as EEO and ADA.In helping your organization recover from this sensitive issue, your best tool is communicating a few key messages. First, be clear in communicating that the employee's leave did not give her an advantage, or disadvantage, in the promotion process. She followed the same application and consideration process as every other applicant, and her leave was immaterial. The next point is that the best outcome for the organization was achieved—the most qualified candidate won the promotion. Finally, it's important to realize that while your communication may be primarily intended for those upset over the promotion, it also will be received by others who may be worried that use of leave may negatively affect their own career development within the organization. By taking the high road on this issue, you're communicating your commitment to abide by both the spirit and the letter of FMLA.

SOURCE: Ophelia Galindo, Buck Consultants, Orange, California, May 1, 2008.
LEARN MORE: Tips for minimizing FMLA costs.

Q. What Trends Are Emerging in Paid Maternity Leave?

Many organizations handle paid maternity leave through their disability program. It has recently become popular to develop maternity/paternity leave programs that apply to both parents and also cover adoption and the need to take time off for children beyond the infant stage (such as attending school programs). According to a recent survey conducted by the Society for Human Resource Management, the percentage of organizations offering paid maternity leave increased from 14 percent in 2003 to 18 percent in 2007; the percentage offering paid paternity leave jumped from 12 percent to 17 percent over the same time period. Practices vary considerably by industry.One recommendation would be to view this benefit from a total rewards perspective. Evaluate the business needs for human capital, review the challenges the workforce is posing, evaluate what is valued by the target population, and benchmark the practices at peer organizations. Once your firm has achieved a better understanding of these issues, it can better determine what would make the most sense for its employees.With regard to the differences between management and staff classifications, the firm should evaluate the reasons for segmenting the plan and review state laws. The recent trend has been to minimize the distinctions between management and staff or exempt and nonexempt positions. In general, needs don't change based on position, although employees in nonexempt positions who do not have the flexibility to work at home may have greater needs. Providing distinctions in benefit programs tends to create caste systems that can be detrimental to morale.

SOURCE: Steven F. Cyboran, Sibson Consulting, a division of the Segal Co., Chicago, April 25, 2008.

LEARN MORE: Some companies are taking steps to help identify pregnancies that could result in premature births and costly claims.

Register for New AAAA Webinar: "Navigating the Cross-Currents: ADA/FMLA/Workers Compensation."

Register for New AAAA Webinar: "Navigating the Cross-Currents: ADA/FMLA/Workers Compensation."

AAAA is pleased to announce the second of the 2008 bimonthly webinar series scheduled for March 25, 2008 from 2:00 p.m. to 3:00 p.m. EST. The subject of this one-hour webinar is "Navigating the Cross-Currents: ADA/FMLA/Workers Compensation." The presenter for th is webinar is Robert Gregg, Esq., of the Boardman Law Firm, Madison, Wisconsin. Mr. Gregg is a popular member of the AAAA Professional Development and Training Institute faculty and teaches EEO Law and other subjects. For a detailed description and to register for the March 25th webinar, go to: http://www.regonline.com/Checkin.asp?EventId=186637.For more information, contact aaaapdti@gmail.com.

Wage and Hour Division Publishes Proposed Rules on FMLA

On February 11, 2008, the Department of Labor's Wage and Hour Division published a Notice of Proposed Rulemaking under the Family and Medical Leave Act. Interested parties are encouraged to submit comments by 12:00 midnight, April 11, 2008. The Federal Register Notice, instructions for submitting comments and related documents are available at Wage and Hour's FMLA Notice of Proposed Rulemaking website. The Department is also seeking final comment on proposed regulations involving military leave.

Among other issues, these proposed regulations address the U.S. Supreme Court's decision in Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), in which the Court ruled that the penalty provision in the regulations which states that if an employee takes leave and the employer does not designate the leave as FMLA leave, the leave taken does not count towards the 12 week FMLA leave. The Court found that any categorical penalty for a violation of the statute would exceed the Department's statutory authority.

New Family and Medical Leave Act Amendments Signed into Law

Information from the Department of Labor, Wage and Hour Division Website:

On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181. Among other things, section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”
The provisions in the NDAA providing this leave are effective as of the date of the President’s signing. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, WHD will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).
The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” DOL is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.
DOL will update this page as additional guidance is developed and published.
To view the amended Title I of the Family and Medical Leave Act:
Title I of the FMLA, as amended by the National Defense Authorization Act for FY 2008
The information at the link below may also be of interest:
Compliance Assistance – Family and Medical Leave Act
http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm

Bush Administration Intends to Change FMLA Regulations

Workforce Management
Bush Administration Intends to Change FMLA Regulations

Before the Bush administration exits a year from now, it intends to modify a major employee leave law for the first time since it was enacted 15 years ago. But the extent of the revisions likely will remain a mystery until sometime in February.

On Thursday, January 24, the Labor Department sent to the Office of Management and Budget proposed regulatory changes to the Family and Medical Leave Act.
Business groups have criticized aspects of FMLA for causing administrative headaches, while advocates want to see it expanded. It’s not clear yet which side will be more disappointed by the proposal.
Although a Labor Department official announced the move through interviews with the Associated Press and The New York Times, the department has not provided any details about its recommendations.
The White House budget office has up to 90 days to review the proposal, but observers estimate that it likely will be published by mid-February in the Federal Register. The public would then have 60 days to comment. Then the Labor Department would issue a final regulation.
The law allows employees up to 12 weeks of unpaid leave for the birth or adoption of a child or to deal with their own or a close relative’s sickness. It covers about 76 million workers.
The proposed revisions could include requiring that employees give prior notice before taking leave and revamping the medical certification process, according to published reports.
The proposal includes regulations that will implement an expansion of FMLA to provide up to 26 weeks of leave to injured military service members, according to the AP account. That provision was included in a larger defense bill that has been sent back to President Bush after he refused to sign it in December because of unrelated Iraq war language.
In addition, the FMLA language sent to the White House defines when employees would be eligible for 12 weeks of leave because of “any qualifying exigency” related to a spouse, son, daughter or parent being on or called to active duty.
The leave law has been controversial for most of its existence. A Labor Department survey about FMLA last year generated 15,000 comments, many from employers complaining about disruptions caused by unscheduled intermittent leave and the fuzzy definition of a serious health condition.
No one yet knows whether the scope of the proposal encompasses such big issues.
“I hope it does more than nibble around the edges,” says Marc Freedman, director of labor law policy at the U.S. Chamber of Commerce. “Maybe they’ve done something here that will have an impact—maybe not a wholesale revision but some approach that will help tighten it up and give employers more control over the use of [unscheduled intermittent] leave.”
FMLA advocates are worried that the Labor Department will undermine the law by modifying it to satisfy the business community.
“The Bush administration should do nothing more than … clarify the penalty for employers who do not properly designate and notify employees about FMLA leave,” said Debra Ness, president of the National Partnership for Women & Families, in a statement. “There is no need to do anything further to the FMLA, which is working well and has helped tens of millions of people.”
—Mark Schoeff Jr
http://www.workforce.com/section/00/article/25/33/12.html