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Administering the Family and Medical Leave Act is probably the top regulatory headache currently affecting human resource personnel. Overly expansive regulations are testing employer limits as they sort out federal and state leave law applications, intermittent leave requests and tracking, and the expanding definition of serious health condition.
In addition, federal appeals courts take conflicting views regarding required notice, serious health conditions and the validity of Federal Regulations. The FMLA is a law in flux throughout the country. Congress is attempting to address the conflict through recently proposed legislation. The FMLA Revision Bill would modify the definition of "serious health condition" to exclude leave that would fall within a modest sick leave policy for which treatment and recovery are brief. Additionally, the bill would restrict intermittent leave to minimum four hour blocks of time. Employees would assume the responsibility for designating desired leave as FMLA leave. Finally, all DOL regulations would be rewritten and reissued. Congress has not yet actively addressed the proposal, but the debate over the revisions will likely be intense and resolution of conflicts is not on the near horizon.
The U.S. Supreme Court is also grappling with the validity of the FMLA notice regulations. At issue is the validity of the federal regulation which allows an employee who has taken leave, to retain her 12 weeks of FMLA leave if an employer fails to designate the leave already taken as FMLA leave. As written and applied, the regulation grants an employee more leave than designated in the statute.
With the seeming imbalance between court interpretation and overly broad regulations, it is crucial for covered employers to have a strong understanding of FMLA basics and a carefully crafted family and medical leave policy. A recent Illinois Federal District Court required an otherwise non-covered employer to provide family and medical leave benefits to an employee based on specific FMLA language in its handbook which created a binding contract.
For more information about FMLA and other employment law issues, call Krukowski & Costello, S.C. at (414) 423-1330, or e-mail educational services.
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