Eaton Peabody

In honor of Valentine's Day, we thought we'd let you know that on Monday, February 11, 2008, the Department of Labor published proposed changes to the Family and Medical Leave Act. This includes extensive comments, new regulations, a new poster, and new forms. The DOL's publication is far too long (127 pages) for a quick summary and will require serious evaluation.

However, we can provide a brief update on the new forms. The DOL has totally revised the WH-380 and WH-381 forms and proposed a new WH-382 form. The forms reflect a new emphasis on "essential functions" (a term borrowed from the ADA). You can anticipate that if you haven't defined "essential functions" you may soon need to articulate the "essential functions" of the employee's position as part of the FMLA process. Also, the forms use the new term "flare-ups" with regard to intermittent leaves. We predict this term will be carefully scrutinized. While the forms include some improvements, there are some portions of the forms which are very confusing, especially the provisions in the new WH-382 form about substitution of leave.

Keep in mind these are proposed changes only, not new regulations. The government will accept comments on the proposed regulations until April 11, 2008.

Stay tuned - it is likely that something more is on its way. This should be a very interesting story to follow, especially in an election year.

For more information regarding this client alert, please contact Clare Hudson Payne or Sarah E. McCarthy at 207-947-0111 for further information.