The Family Medical Leave Act (FMLA) was enacted in 1993 to require employers with 50 or more employees to allow “eligible” employees to take job-protected, unpaid leave for up to 12 weeks for specific qualified reasons. Now, the FMLA has undergone its first major revision. New regulations were issued by the Department of Labor (DOL) in November, 2008. Effective Jan. 16, 2009, you will confront a very different law.
Overview
Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- for the birth and care of the newborn child of the employee;
- for placement with the employee of a son or daughter for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.
The Department of Labor's Wage and Hour Division published a Final Rule under the Family and Medical Leave Act. The final rule becomes effective on January 16, 2009, and updates the FMLA regulations to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008. It also includes revisions in response to over 4,600 public comments received on the proposed rule issued in February 2008. The Federal Register Notice and related documents are available at Wage and Hour's FMLA Final Rule website. (November 17, 2008).
The FMLA regulation changes have been more than two years in the making. Along the way, the DOL sifted through more than 20,000 comments from employers and pro-employee groups and released proposed regulations in February 2008. Here are some highlights of the changes:
- Employees will have to follow their employer’s call-in policies when they are planning to miss work “absent unusual circumstances.” Currently, employees have up to two days after a business absence to notify the company about their need for leave.
- To have a “chronic condition” that qualifies for FMLA leave, employees for the first time will have to certify that they visited a doctor at least twice a year for the condition.
- In a departure from the proposed regulations, one new provision prohibits direct supervisors from getting an employee’s medical information when an FMLA certification is needed, to protect the employee’s privacy.
- Employers may require "fitness-for-duty" tests for employees returning from intermittent FMLA leave if doing the job raises a significant risk of harm to themselves or others.
- When employers place injured or ill workers on light duty, the time on light duty doesn’t count against the employee’s FMLA leave entitlement.
- The regulations provide additional clarification regarding the type and frequency of treatments that employers must receive under the “chronic” and “continuing treatment” definitions of a serious health condition.
- The regulations also contain (1) more detailed guidance on the substitution of paid leave for FMLA leave and (2) substantial new notice requirements for employers.
Click here for a downloadable fact sheet from the DOL.
Two Big Benefits for Some Military Families
The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.
“Next of kin,” which can include grandparents, aunts, uncles, first cousins, and any relative so designated by the service member — not just spouses, parents, and children — are eligible to take this leave. The 26 weeks can be taken over a 12- month period, with the clock starting to run on the first day of the leave.
This military caregiver leave may be taken only once per injury, but more than one family member may qualify for it, and each relative may take leave again if there are other injuries. The leave, however, is available only while the service member remains in the military.
The other new military family leave benefit allows relatives of those called to active duty in the National Guard and Reserves — but not regular active-duty military members — to take up to 12 weeks of leave for several qualifying “exigencies.” A variety of deployment-related reasons would be covered, including (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities not encompassed in the other categories, but agreed to by the employer and employee.
“Rest and recuperation” means that the employee may take up to five days of leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment.
The final rule also includes two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family leave. Forms for non-military related FMLA have also been revised.
For additional information, visit the DOL's website.
(Sources: Department of Labor and the Employment Law Post)
