Client Bulletin #397


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On Monday, November 17, the U.S. Department of Labor will issue its final regulations on the Family and Medical Leave Act. The new regulations, reportedly 750 pages long, will address the new military provisions enacted in January 2008 and fine-tune the old FMLA regulations, issued in 1995. According to Victoria A. Lipnic, Assistant Secretary of Labor, and other news sources, the following are some highlights of the new regulations:

Military Leave

*Military leave for a "serious injury or illness" will be 26 weeks per 12-month period, not once in a career. The 12-month period will have to begin when the employee begins his or her leave: in other words, the employer will not be allowed to use a "fixed-year" method of calculating the 12-month period.

*Our readers may recall that "qualifying exigency" was not defined in the National Defense Authorization Act, which created the new military leave provisions. Those provisions were not to take effect until the Department of Labor issued regulations. The regulations to be issued Monday reportedly have a broad definition of "qualifying exigency," including short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any additional activities agreed to by the employer and the employee.

The "New/Old" FMLA

*The new regulations will allow an employer to contact an employee's health care provider, so long as the employer contact is either a health care provider, human resources professional, leave administrator, or "management official." The employee's direct supervisor is not permitted to contact the health care provider.

*If a medical certification lacks critical information, the employer must give the employee written notice, specifying the additional information needed, and seven days to provide more complete information.

*It appears that the new regulations will significantly change employees' and employers' FMLA notice obligations. Constangy will provide specifics after reviewing the final regulations.

*Waivers of FMLA claims in severance agreements and settlements will be valid without approval of the courts or the U.S. Department of Labor. This should resolve the issue created by the U.S. Court of Appeals for the Fourth Circuit (Maryland, the Carolinas, Virginia, and West Virginia) in Taylor v. Progress Energy, which had held to the contrary. As always, prospective waivers of FMLA claims (for example, as a condition of employment) are void.

*Time spent on light-duty assignments may no longer be counted toward the employee's 12-week FMLA leave total. Instead, the employee's right to restoration will be on "hold" until the light duty is completed or the 12-month leave year ends.

Please take all of the above with a grain of salt because the regulations have not yet been published. Constangy will issue a more comprehensive Client Bulletin based on a first-hand review of the actual regulations and will offer a webinar, forms, and other client assistance, in the near future.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit

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