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FMLA update

First expansion of law
The first expansion of the Family and Medical Leave Act (FMLA) signed by President Bush on January 28, 2008, requires businesses to offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military personnel. An employee who requests this new category of FMLA leave still must meet the existing requirements for FMLA eligibility, including length of service.

Unlike other types of FMLA leave, this leave is available to “next of kin,” meaning the nearest blood relative of a service member, even if he or she is not a spouse, child, or parent of the service member.

The second major change to the FMLA is the addition of a new event that will entitle an eligible employee to the usual 12 weeks of unpaid FMLA leave. Immediate family members (spouses, children or parents) of soldiers, reservists and members of the National Guard are allowed time to deal with “any qualifying exigency.” This term is not defined in the statue and will be clarified in regulations from the Secretary of Labor.

Most of the provisions of the FMLA remain unchanged, including employer coverage, employee eligibility requirements, health insurance continuation and reinstatement rights.

Key court decision affirming individual notice requirement
The Fifth Circuit U.S. Court of Appeals reaffirmed the Department of Labor regulations requiring employers to give employees individualized notice of FMLA leave in Downey v. Strain. The employee, Susan Downey, took 424 hours of FMLA leave for knee and shoulder surgeries from November 2002 to March 2003. In this leave she received proper notice from her employer and had slightly over 50 hours of leave time remaining for the year.

In June 2003, she suffered a work related injury and had surgery, requiring another two months of leave from the end of July to the beginning of October 2003. The supervisor charged this leave to FMLA, but did not inform Downey. Her FMLA leave was exhausted in early August and the rest of the time was covered with other paid leave. When she returned to work, she was reassigned to another division with fewer fringe benefits.

The employee sued arguing that the employer had failed to provide her with individualized written notice and had she known she would have postponed her surgery. The jury agreed and the defendant
unsuccessfully appealed, arguing that the regulations requiring individualized notice were invalid. Under the law, the employer must promptly (within two business days absent of extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave. If the employee can prove that they are harmed by the failure to give notice, then there is a violation of the FMLA.

The decision in the case demonstrates that failure to properly notify exposes employers to liability for damages under FMLA.