You can obtain the  poster and forms from the DOL website by clicking on these links: new poster  and Notice of Eligibility (to be given to employees within 5 business days of their request for FMLA leave.)  If certification will be required, then the appropriate certification form must be given to the employee (with the Notice of Eligibility) within 5 business days after the leave request: certification for employee’s serious health condition; or certification for family member’s serious health condition; or family military leave for qualified exigency form; or certification for serious injury or illness of covered military service member for Military Family Leave.  Within 5 business days after its decision on the leave request, an employer must give a Designation Notice setting forth the terms of such leave if approved, whether  additional information is needed or whether the leave request has not been approved.

The number one priority of the labor movement is the Employee Free Choice Act (“EFCA“).  EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure.  If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards.  After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement.  If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (“FMCS“) would then become involved in the negotiations.  If a contract is not agreed to in the following 30 days,  the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues.   President-elect Obama was a sponsor of the EFCA bill when  he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007.  It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.

President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (“NLRB“) and to designate a new Chairman and General Counsel of the Board.  These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration.   Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.

The U.S. Department of Labor (“DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview.  There are serious efforts to increase the minimum wage (“FLSA“) and to enact new safety rules (“OSHA“).  There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.

Several organizations that advocate for a more family friendly workplace  are expected to make an effort to have the Family & Medical Leave Act (“FMLA“) require paid leave.  There are several states that have recently passed such legislation.  The recently promulgated FMLA regulations are not expected to be changed in the near future.

President-elect Obama  also has the opportunity to appoint the Chairman, General Counsel and  Commissioners to the Equal Employment Opportunity Commission (“EEOC“) and that agency is expected to increase its enforcement efforts during the new administration.  Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.

There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.

Your FMLA policy must provide for Military Caregiver Leave, allowing an eligible employee to take up to 26 weeks in a 12 month period to care for a covered family service member who has suffered a serious illness or injury in the line of duty while on active duty.

Qualifying Exigency Leave may be taken by an eligible employee for up to 12 weeks when an “exigency” arises because a covered family member belonging to the National Guard or Military Reserves is on active duty or is called to active duty.  The new regulations specify 8 broad categories that are regarded as exigencies.

The new regulations provide for a revised FMLA notice to be posted, as well as new forms to be used when either of these leaves or traditional FMLA is requested.  The notice and forms are available on the DOL’s website. 

There is also a change in the time periods involved in administering FMLA requests.

I recommend that all employers inform their managers of these changes, in addition to conducting internal training for FMLA administrators.