As we approach the 15-year anniversary of the FMLA, the Department of Labor is proposing regulations to the White House for review. These changes will reshape family leave policy for both large and small businesses, even the military. The initiatives to change the FMLA are in response to the courts’ invalidating or questioning various FMLA provisions.
Waivers of liability, for instance, have been problematic. Employers often obtain signed forms from employees affirming that the employee releases its rights to sue the employer. Employers also seek to relinquish FMLA liability. At the moment, there’s no consensus among courts on whether those waivers are valid. Just this past month, the U.S. Supreme Court invited the Solicitor General to comment on whether courts should uphold and enforce waivers of FMLA rights.
Eligibility requirements have also been controversial and applied inconsistently. For instance, companies must have at least 50 employees before the FMLA even applies to them. Second, an employee has to have been an employee for at least 12 weeks before the employee is eligible for family medical leave. These requirements might change.
The new FMLA proposals will likely address sections dealing with waivers of FMLA rights, joint employers, and notification requirements. Other propositions concern the definition of a “serious health condition” and the intersection of the FMLA and the Americans with Disabilities Act. Other areas include intermittent leave, as when an employee leaves work for a few hours.