Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

As expected, President Obama has signed into law a bill that will enable more airline employees to avail themselves of leave under the Family and Medical Leave Act (FMLA). The Airline Flight Crew Technical Corrections Act (S. 1422) was approved by the House of Representatives by voice vote on December 1.  The Senate passed this measure on November 10.

The bill sought to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12-month period, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts have concluded that the time pilots and fight attendants spend on the job between flights and on mandatory standby do not count as “hours worked.” The new Act clarifies that that the hours pilots or flight attendants work or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation.

For more information on this new law and its implications for airline employers, see Littler’s ASAP: President Signs Bill Easing FMLA Eligibility Requirements for Airline Flight Crew by Ilyse Schuman and Peter Petesch.

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A bill that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants is a step closer to becoming law. On Tuesday, the House of Representatives passed the Airline Flight Crew Technical Corrections Act (S. 1422) by voice vote. The Senate approved this largely uncontroversial measure last month. This legislation would change the hours of service requirements to enable more airline industry employees to qualify for FMLA leave.

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As promised, Sen. Chris Dodd (D-Conn.) and Rep. Rosa DeLauro (D-Conn.) have introduced in both chambers of Congress emergency legislation that would provide most employees with up to seven paid sick days to care for themselves or a family member with a contagious illness, including the H1N1 influenza virus. The Pandemic Protection for Workers, Families, and Businesses Act (S. 2790, H.R. 4092) would allow employees to use these sick days to tend to their own flu-like symptoms, obtain a medical diagnosis or preventive treatment, care for a sick child, or care for a child whose school or child care facility has been closed due to the spread of a contagious illness. Part-time employees would also be entitled to paid leave on a pro-rated basis. Employees would have the discretion to decide whether they need to take leave, although the Department of Labor (DOL) could issue a regulation requiring medical certification. In addition, the bill would make it unlawful for an employer to take an adverse action or otherwise discriminate against employees that avail themselves of these leave benefits. If enacted, the terms of this bill would take effect within 15 days, and sunset after two years. Employers that already provide up to seven days of annual paid sick leave would not be required to provide additional benefits.

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The Department of Labor’s (DOL) Wage and Hour Division (WHD) has posted to its website information sheets discussing the interplay between pandemic flu preparation/response and compliance with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Both guidance documents are in question and answer form, and address common wage, hour, and leave issues employers face when employees or their family members become sick with the H1N1 influenza virus or other pandemic flu.

Both fact sheets: Pandemic Flu and the Fair Labor Standards Act: Questions and Answers (pdf) and Pandemic Flu and the Family and Medical Leave Act: Questions and Answers (pdf) can be found here.

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During a November 10 Senate subcommittee hearing on the H1N1 influenza virus (“swine flu”) and paid sick leave, Senator Chris Dodd (D-Conn.) announced that he plans to introduce a bill that would entitle most employees to take up to 7 days of paid sick leave to deal with the H1N1 or seasonal flu. According to a press release, under the terms of this bill workers would be entitled to the paid leave for their own flu-like symptoms, medical diagnosis or preventive care, to care for a sick child, or to care for a child whose school or child care facility has been closed due to the spread of flu. The decision to take this leave would be left to the employee’s discretion, although the Department of Labor could issue regulations requiring medical certification. If signed into law, the provisions of this bill would take effect 15 days after enactment, and sunset after 2 years.

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On Wednesday President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), which includes provisions expanding military family leave entitlements. Specifically, the Act permits family of active duty members to take up to 12 weeks of job-protected leave in a 12-month period for a “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. A broad range of events and activities are considered qualifying exigencies, including short-notice deployment, child care and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities. Prior to this Act, exigency leave was limited to family of Reserve and National Guard members only.

The Act also enables military caregivers to take up to six months (26 workweeks) of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. The Act now covers care for veterans up to five years after the service member leaves the military. This leave is not calculated using the calendar-year method. Rather, the caregiver may take this leave in a single 12-month period, which begins on the first day the employee takes leave and ends 12 months later.

For more information on these new leave entitlements, see Littler's ASAP: Congress Adds Additional Family Military Leave Entitlements to the FMLA by Mark T. Phillis.

 

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On Thursday, the Senate voted 68 to 29 to approve the conference report (pdf) to the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), which contains provisions expanding Family and Medical Leave Act (FMLA) military family leave entitlements that were enacted as part of the Fiscal Year 2008 National Defense Authorization Act. These FMLA amendments allow eligible employees to take up to 12 weeks of job-protected leave in a 12-month period for any “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. In addition, eligible employees are permitted to take up to 26 weeks of job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness. The 2010 National Defense Authorization bill would allow family of active duty members in regular service to take advantage of exigency leave provided for by these FMLA amendments, as well as extend military caregiver leave to veterans. Current Department of Labor (DOL) regulations limit access to exigency leave to family of Reserve and National Guard members only, and do not permit family members to take leave to care for servicemembers once they have left the military, even though certain injuries and illnesses (such as traumatic brain injury and post traumatic stress disorder) may not manifest themselves until months or years after the injury occurs.

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Rep. Lynn Woolsey (D-CA) and Sen. Chris Dodd (D-CT) have introduced a bill in both chambers of Congress that would enhance family and medical leave benefits for family members of veterans. The Supporting Military Families Act of 2009 (H.R. 3403, S. 1543) would amend the Family and Medical Leave Act’s (FMLA) military family provisions that were enacted as part of the Fiscal Year 2008 National Defense Authorization Act that entitle family or primary caregivers of military members to take up to 26 weeks of unpaid leave to care for the wounded service member. The new bill would extend the time in which the family member could take such leave, and expand the scope of those who would be covered by these medical exigency leave provisions.

According to a press release issued by Rep. Woolsey’s office, this bill would:

• Extend the twenty-six weeks of leave to family members of veterans for up to five years after a veteran leaves service, if he or she develops a service-related injury or illness that was incurred, or, in the case of an existing injury, was aggravated while on active duty.
• Extend exigency leave to covered active duty members in regular military service. Current Department of Labor (DOL) regulations limit access to exigency leave to Reserve and National Guard members only.
• Extend exigency leave eligibility to those service members deployed to a foreign country. The current law limits availability of exigency leave to those deployed “in support of a contingency operation.”

The House version of this bill has been referred to House Committee on House Administration. The Senate companion bill has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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Rep. Lynn Woolsey (D-CA) has introduced the Balancing Act of 2009 (H.R. 3047), a bill aimed at working families that combines a number of provisions from previously-introduced family and medical leave legislation. In addition to addressing issues such as childcare and medical need assistance, this bill would, among other things, amend the Family and Medical Leave Act (FMLA) to provide for paid time off to care for a new baby or sick family member, provide paid sick leave, and allow employees to take time off to attend their children’s school or extracurricular activities, attend to the needs of elderly family members, receive routine medical care, as well as address issues related to domestic violence or sexual assault. The bill also includes a business child care incentive grant program in addition to a section promoting teleworking.

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Last week Senator Ron Wyden (D-Ore.) introduced the Military Family Leave Act of 2009 (S. 1441), a bill that would grant military family members temporary annual leave for the member's deployment. Specifically, the legislation would allow the spouse, child or parent of a member of the uniformed services to take up to two weeks of annual leave from his or her job if the service member receives notice of an impending call or order to active duty in support of a contingency operation, or is deployed in connection with a contingency operation. This leave could be taken intermittently or on a reduced leave schedule. The employee would be entitled to two workweeks of leave for each military family member called to active duty. The employee could elect – but the employer could not insist upon – the substitution of accrued paid time off for the leave provided for under this legislation. An employer may require, however, that certification to support the family member’s military situation be provided in a timely manner.

This bill also prevents an employer from terminating or otherwise discriminating against an employee who takes such military family leave, and compels the reinstatement of the employee to his or her position (or an equivalent one) without loss of benefits upon returning to work.

This bill, which adds a new chapter to Part III of title 38 of the U.S. Code, has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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Last week Senator Patty Murray (D-WA) introduced legislation that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Technical Corrections Act (S. 1422) would change the hours of service requirements to enable more airline industry employees to take FMLA leave. On February 9 of this year, the House passed by voice vote a nearly identical bill (H.R. 912).

As the law currently stands, employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12 months, which amounts to at least 60 percent of a standard 40-hour workweek. This method of calculation impacts employees in the airline industry, whose time spent on the job between flights or on mandatory standby does not count as “hours worked” under the Fair Labor Standards Act (FLSA), which the courts use to determine the requisite number of hours for FMLA purposes. This bill would clarify that the hours pilots or flight attendants work or for which they are paid – not just those spent in flight – count toward the minimum hours calculation. Specifically, an airline flight crew member would be eligible to take FMLA leave if he or she had worked or been paid for 60 percent of the applicable monthly guarantee, or the equivalent amount annualized over the preceding 12-month period, and if he or she had worked or been paid for at least 504 hours during the previous 12-month period.

This bill, which is co-sponsored by Senators Chris Dodd (D-CT), Kit Bond (R-MO), Susan Collins (R-ME), Lisa Murkowski (R-AK), and Jim Webb (D-VA), has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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Last week Rep. Carolyn Maloney (D-NY) and Sen. Jeff Merkley (D-OR) introduced the Breastfeeding Promotion Act of 2009 (H.R. 2819, S. 1244), a bill that would, among other things, amend Title VII of the Civil Rights Act to clarify that breastfeeding and expressing breast milk in the workplace are protected activities; amend the Fair Labor Standards Act (FLSA) to require large employers to provide time and privacy for lactation; and establish a tax credit for employers that provide a suitable environment for employees to breastfeed or express milk.

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Legislation introduced by Rep. Lynn Woolsey (D-Ca.) would amend the Family and Medical Leave Act (FMLA) by extending coverage to domestic partners, and permitting leave to be taken to address acts of domestic violence, sexual assault and stalking. The Domestic Violence Leave Act (H.R. 2515) would authorize FMLA leave to be taken on behalf of oneself or for a family member to seek medical attention, legal assistance, and psychological counseling for, or recovery from injuries caused by, domestic violence, sexual assault or stalking. Leave could also be taken to participate in safety planning or any other activity necessitated by the above factors that must be undertaken during work hours. Under the terms of this bill, an employer may seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the Act. A similar bill recently introduced in the House and Senate – the Healthy Families Act – would provide paid leave to employees affected by acts of domestic violence, sexual assault or stalking.

The second portion of the Domestic Violence Leave Act would amend the language of the FMLA by including the phrase “or domestic partner” in every instance where “spouse” is mentioned. Federal employees would also be covered by this bill.

This legislation has been referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.
 

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During a press conference held this morning, Rep. Alan Grayson (D-Fla.) – whose district includes popular tourist spots in Orlando – introduced the Paid Vacation Act of 2009, a bill that would mandate paid vacation leave for most employees.  According to a press release, the measure would require employers with 100 or more employees to provide a week of paid vacation. After three years, businesses with a minimum of 50 employees would have to meet the same requirement, while those with 100 or more employees would be required to provide employees with two weeks of paid vacation leave. To be entitled to take such paid leave, employees would have to work for at least one year. Part-time employees would need to work a minimum of 25 hours per week and 1,250 hours per year to be eligible.

An article at Roll Call notes that the response to this proposal has been somewhat lukewarm. Critics of the measure have emphasized that a blanket federally-mandated vacation policy will not work in all organizations, would impose additional burdens on businesses in an already weak economy, and could affect hiring decisions for some employers.  

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A bill that would require employers to provide paid sick leave to employees was reintroduced in the House of Representatives on Monday by Rep. Rosa DeLauro (D-Conn.), and co-sponsored by 101 others. The Healthy Families Act (H.R. 2460) would allow employees to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as doctor’s appointments. In addition, the bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Employers with 15 or more employees would be covered by this legislation.

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The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued an opinion letter (FMLA2009-1-A) clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances. In a previous opinion letter dated January 15, 1999 (FMLA-101) the DOL had concluded that employers’ call-in/no show policies and related disciplinary measures could not be applied so long as the employee provided notice within two business days that the leave was FMLA-related, regardless of whether such notice could have been provided sooner. To the extent that FMLA-101 created a blanket “two-day rule” for providing FMLA notice, the WHD is rescinding it.

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Two bills were introduced this week that seek to amend the Family Medical Leave Act (FMLA) and its regulations. On Wednesday, Rep. Carol Shea-Porter (D-NH) introduced legislation that would reverse Department of Labor (DOL) regulations on the FMLA that were issued in November 2008.  The Family and Medical Leave Restoration Act (H.R. 2161) would essentially nullify the new DOL regulations, restore prior ones, and direct the Secretary of Labor to revise additional regulations under this Act.

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The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. The document, Employer Best Practices for Workers with Caregiving Responsibilities, supplements Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, a guidance document the EEOC released on this topic in 2007. The earlier document specifically examines how federal anti-discrimination laws apply to workers with certain family caregiving obligations. The new guidance provides suggestions for best practices that an employer can proactively adopt to potentially lessen the chances of committing EEO violations against caregiving employees. Suggestions include implementing personal or sick leave policies that allow employees to use leave to care for sick family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

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A bill introduced this week by Rep. Pete Stark (D-Calif.) and co-sponsored by three others would provide employees with 12 weeks of paid benefits to take time off due to their own illness, or to care for a sick family member or new child. The Family Leave Insurance Act of 2009 (H.R. 1723) would create an employee- and employer-financed insurance fund to provide for the paid leave.

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A bill that would give employees a statutory right to request flexible work terms and conditions was reintroduced this week. The Working Families Flexibility Act (H.R. 1274), introduced by Reps. Carolyn Maloney (D-NY), George Miller (D-Calif.), John Lewis (D-Ga.) and Elijah Cummings (D-Md.), would give workers the right to request flexible work options to balance the demands of their jobs and home life. This legislation was patterned after similar laws in Europe. Reps. Maloney and Miller had introduced this bill in the last congressional session (H.R. 4301). While still a senator, President Obama co-sponsored a companion bill (S. 2419) in the Senate along with Sen. Ted Kennedy (D-Mass.) and former Sen. Hilary Clinton (D-NY).

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Lawmakers in the 111th Congress continue to introduce employment-related legislation. The following bills appeared on the docket within the past week:

Family and Medical Leave

A bill passed by the House on February 9 by voice vote would close a Family and Medical Leave Act (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Family and Medical Leave Act (H.R. 912) would change the hours of service requirement to enable more airline industry employees to take such leave.

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On Tuesday, February 10, 2009, Rep. Cathy McMorris Rodgers (R-WA) reintroduced the Family-Friendly Workplace Act (H.R. 933), a bill that would amend the Fair Labor Standards Act (FLSA) to permit private-sector employees to chose compensatory leave in lieu of cash wages for overtime hours worked. This “comp time” option has long been available to public sector employees, and has proven to be very popular.

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A bill that would expand the Family and Medical Leave Act (FMLA) for both private and federal employees was introduced last week. The Family and Medical Leave Enhancement Act of 2009 (H.R. 824) would amend the FMLA to allow employees to take time off from work to participate in their children’s or grandchildren’s school or community organization activities (such as parent/teacher conferences, scouting or sports events), attend regular medical/dental appointments, or attend to the needs of an elderly relative, such as visiting them in a nursing home. Perhaps more importantly, this act would expand who would be considered an employee “eligible” to take FMLA leave. Under this legislation, the FMLA would apply to employers with 25 or more employees within the prescribed radius, not 50 as is the current law. This expanded definition would greatly increase the number of employers that would be impacted by this law.

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A bill introduced in the House seeks to amend the Family and Medical Leave Act (FMLA) by abolishing the hours of service requirement for benefits. The Family Fairness Act of 2009 (H.R. 389), introduced by Rep. Tammy Baldwin (D-Wisc) would eliminate the stipulation that employees must have worked at least 1,250 hours during the previous 12-month period to qualify for FMLA benefits. An employee would still be required to have worked for the employer for at least 12 months to be eligible for FMLA leave. The practical effect of this bill is the expansion of the pool of employees – especially those working part-time – covered under the FMLA.

This bill was referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration.
 

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Regulations governing the first changes to the Family and Medical Leave Act (FMLA) in 15 years take effect Friday, January 16. The FMLA amendments, which provide for military caregiver leave and qualifying exigency leave, were introduced as part of the fiscal year 2008 Defense Authorization Act. The final rule governing how these amendments impact the FMLA was issued last November.

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The Department of Labor has posted on its website its updated poster incorporating the recent military family leave amendments and other changes to the Family and Medical Leave Act (FMLA), as reflected in the recently-published final FMLA rule. Employers covered by the FMLA are required to post notice of an employee’s FMLA rights in a conspicuous area in the workplace.

The DOL has also posted a number of new and revised optional FMLA forms. These forms include the FMLA Certification of Health Care Provider for Employee's Serious Health Condition (WH-380E); FMLA Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380F); FMLA Notice of Eligibility and Rights and Responsibilities (WH-381); FMLA Designation Notice (WH-382); Certification of Qualifying Exigency For Military Family Leave (WH-384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

These forms expire on December 31, 2011.
 

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A bill mandating employees’ rights to request certain changes to their terms or conditions of employment is likely to be reintroduced in the 111th Congress. The potential bad news for employers is that legislation promoting more work/life balance is apt to receive bipartisan support. The good news is that this bill – if it resembles the Working Families Flexibility Act introduced in 2007 (S. 2419, H.R. 4301) – does not pose as onerous a burden on employers as other employment legislation likely to be resurrected under the New Administration. However, if passed in its current form, the bill would radically alter employees’ rights and create additional burdens for employers, particularly small businesses with little or no human resources function.

The Working Families Flexibility Act, whose companion bill was co-sponsored by then-Senator Obama, would have permitted employees to request changes to:

• the number of hours the employee is required to work
• the times when the employee is required to work
• where the employee is required to work

Upon receiving a request for changes to the terms or conditions of work, an employer would be required to meet with the employee to discuss the request, and provide a written decision regarding that request. An employer would need to provide a reason for any denial. Additionally, under the Act an employee would be entitled to reconsideration, and a final written determination by the employer. If the employer refused to comply with this process, an aggrieved employee could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor. The Administrator would have the power to investigate, and assess civil penalties or award appropriate equitable relief, such as employment, reinstatement, promotion, back pay and a change in the terms or conditions of employment.

In essence, the burdens on the employer under this proposed act are largely administrative, as the requests could be denied for legitimate business reasons. On appeal, the Administrator would likely not be second-guessing the presumed legitimate business reasons denying the employee’s request for work flexibility. However, the mere fact that the employer would have to meet with the employee and justify its decision to not grant the employee’s request, combined with the possibility of yet another way employees could initiate legal action against their employers is a cause for management concern. In the event such legislation passes, employers should ensure they have an established process in place to ensure compliance and for dealing with employee work change requests.

 

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On November 17, 2008, the Department of Labor issued final revised regulations for the Family and Medical Leave Act.  Set to take effect January 16, 2009, these 750 pages of revised regulations represent the first update of the FMLA in more than 13 years.

Notably, these regulations expand the FMLA in two significant ways for military families. First, they provide up to 26 workweeks of leave in a 12-month period for family members caring for covered service members with serious injuries or illness incurred in the line of active duty. Second, they allow families of National Guard and Reserve personnel on active duty to take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

The revised regulations also address the following issues:

• The Ragsdale Decision/Penalties
• Waiver of Rights
• Serious Health Condition
• Light Duty
• Perfect Attendance Awards
• Employer Notice Obligations
• Employee Notice
• Medical Certification Process (Content and Clarification)

For more information regarding the implications of these revised regulations and how to remain in compliance with the FMLA, see Littler ASAPs Relief in Sight? DOL Issues Final FMLA Regulations, and Department of Labor Clarifies FMLA Amendments Related to Servicemember Care and Other Military-Related Exigencies.
 

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