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April 25, 2006
Expect a FMLA Rule Change Proposal by June

The Department of Labor says it will soon publish a proposed rule that would change regulations covering the Family Medical and Leave Act (FMLA) so they will conform to recent court decisions.

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The department provided an update to its rulemaking process in its semi-annual agenda, which the agency published in the April 24, 2006 Federal Register.

Background. The FMLA regulations require employers to designate if an employee's use of leave is counting against the employee's FMLA leave entitlement, and to notify the employee of that designation (29 CFR section 825.208). Section 825.700(a) of the FMLA regulations provides that if an employee takes paid or unpaid leave and the employer fails to designate the leave as FMLA leave, the leave taken does not count against the employee's 12 weeks of FMLA leave entitlement.

In a 2002 decision (Ragsdale v. Wolverine World Wide, Inc.), the Supreme Court invalidated section 825.700(a), which penalized employers for failing to designate leave as FMLA leave. The Supreme Court ruled that 29 CFR section 825.700(a) was invalid absent evidence that the employer's failure to designate the leave as FMLA leave interfered with the employee's exercise of FMLA rights.

What the rule will address. The Department of Labor says it is preparing a rule to address issues raised by the Supreme Court and other judicial decisions.

Timetable. The Department of Labor says it will publish a notice of proposed rulemaking by June 2006.

You can read the text of the department's semi-annual agenda in the Federal Register here.

Note: Although the Supreme Court invalidated the penalty for neglecting to designate leave, it did not decide whether requiring employers to give employees individualized notice also exceeds the DOL's authority. Thus, employers should still provide notice to employees as required by the law, stating that the requested leave is being counted as FMLA leave and describing whether it runs concurrently with any other leave entitlement.

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