On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act into law. Notwithstanding the current constitutional challenges to the law, this historic legislation reaffirmed the basic principle that everyone should be afforded the opportunity to have security when it comes to health care. Such security also includes security in employment when a serious health condition causes an employee to be out of work for a temporary period of time. Indeed, it was the recognition of the need for job security during a time of illness which led Congress to enact the Family and Medical Leave Act (“FMLA”) in 1993, providing eligible employees twelve workweeks of leave each year to allow an employee to care for a spouse, child or parent facing a serious health condition or when the employee is battling his or her own serious health condition.

However, when the Department of Labor (“DOL”) amended FMLA regulations in November 2008 to allow employers to secure unsupervised waivers of employees’ FMLA rights, it severely undercut job security afforded employees under the Act. The DOL’s amendment weakens the intended protection of the Act by providing employers with the ability to easily avoid responsibility for FMLA violations, which in turn facilitates the removal of employees who should be protected under the FMLA. This Article argues that employees should only choose to waive their FMLA rights after being fully and adequately informed about what their rights are and that this can only be accomplished through supervised waivers. This Article further advocates for executive and legislative action to revise the law, and proposes litigation strategies for effectively challenging FMLA waivers under the current regulatory scheme.

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