Liability and Penalty Issues

The Department of Labor has generally taken the position that an employee can waive past FMLA rights and claims. However, in recent years some courts have questioned whether an employee can waive FMLA claims without court of Department of Labor approval.  The new regulations confirm that past claims may be waived without court or Department of Labor approval. Employees are still unable to waive future claims or the right to future leave.

The new regulations also expand potential damages available to an employee for interference claims, including damages for "any other relief tailored to the harm suffered." A new clarification on the issue of damages is that that an employer can be liable for harm suffered by an employee for failure to restore health benefits upon the employee's return to work if such benefits had lapsed due to non-payment during the period of leave.