Labor Employment Law Blog

If your company has significant FMLA issues (such as a large percentage of employees certified for intermittent leave), you should be paying attention to the proposed changes to the FMLA regulations. One major change that should be supported is the right to require recertification every 30 days for long-term chronic conditions where there are reasonable safety concerns and intermittent leave has been used during the 30-day period. Comments on the proposed regulations are due by April 11.

On January 28, 2008, President Bush signed an amendment to the Family and Medical Leave Act (FMLA) that extended greater protections to military families.  The amendment (H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181) allows an employee to take up to 26 workweeks of leave to care for an injured or ill member of that employee's immediate family who is a “covered service member” in the military.  The NDAA also permits an employee to take 12 weeks of FMLA leave for "any qualifying exigency" arising out of the fact that an immediate family member in the military is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.

In Stevenson v. Hyre Electric Co., the United States Court of Appeals for the Seventh Circuit recently reversed an order granting summary judgment in favor of the employer on a claim that the employer violated the plaintiff's rights under the Family Medical Leave Act ("FMLA") by terminating the plaintiff's employment.  The court found that there was a triable issue of fact as to whether the employer was placed on notice of the plaintiff's need for FMLA leave based upon the plaintiff's bizarre behavior.

In Taylor v. Progress Energy, Inc., the Fourth Circuit considered the meaning of 29 C.F.R. § 825.220(d) which states that "employees cannot waive, nor may employers induce employees to waive, their rights under FMLA."  The Court concluded that, without prior Department of Labor ("DOL") or court approval, section 825.220(d) bars both prospective and retrospective waiver or release of all FMLA rights, including the right to bring an action or claim for a violation of the Act.