Delaware Employment Law Blog

The FMLA's newly proposed regulations are a serious attempt to address employer concerns and have already drawn criticism from unions and employee advocates. Through the new regulations, the Department of Labor (DOL), has addressed some of the most complained-of provisions, but not all.

The newly proposed regulations with contain provisions that:

• Fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave

• Clarify the eligibility requirements for employees who are jointly employed

• Clarify when an employee’s inability to work overtime exhausts FMLA leave

• Establish that light duty does not exhaust FMLA leave

• Allow employers to deny bonuses (such as perfect attendance or hours worked awards) to employees who don’t qualify for them because they took FMLA leave

• Allow employers to require employees to comply with the terms and conditions of their paid leave policies in order to substitute paid leave for FMLA leave

• Allow employees and employers to voluntarily settle claims of past FMLA violations

• Provide very minimal clarification of the definition of a "serious health condition"

Family and Medical Leave has hit New Jersey employers. The N.J. Senate passed legislation that would make the Garden State only the third state (after California and Washington) with state-sponsored paid family and medical leave. Governor Corzine said he intends to sign the bill, so employers should start preparing now.

The New Jersey Division of Civil Rights, the state agency charged with enforcing the bill, has posted a helpful Q&A on the NJ FMLA on its website.

The criteria for employee coverage will be the same as for coverage under the state’s unemployment compensation law. Employers are covered if they are covered under the New Jersey Temporary Disability Benefits law, that is, if they have one or more employees who earned at least $1,000 in the current or preceding calendar year. Employees will be entitled to benefits in the amount of two-thirds of their weekly pay, up to $524 per week, for up to six weeks in any 12-month period.

Benefits are payable for time off taken to care for a seriously ill family member, or in connection with childbirth or adoption. Benefits will be funded by an additional tax on employees of about $.48 per employee per week, beginning on January 1, 2009. Benefits will begin to be available on July 1, 2009.

The law does not include any job restoration guarantees, and provides that employers with fewer than 50 employees (who are not covered by the federal FMLA) will not be liable to a discharged employee.