The New FMLA Regulations

On November 17, 2008, the U.S. Department of Labor's Wage and Hour Division issued the final regulations of the federal Family Medical Leave Act (FMLA) which went into effect on January 16, 2009. The new regulations clarify and make numerous changes to the original regulations founded in 1995 and add 2 new regulations that give families of military service members new rights to unpaid leave. Employers need to evaluate the new legal requirement, consult their legal department or outside counsel to ensure compliance with California Family Rights Act and update their policies and procedures, notices and forms accordingly.

FMLA Military Amendment

The new military amendments allow eligible employees to take leave in two new situations: to handle urgent family matters that arise because a family member is on active duty status or has just been called to active duty or to care for a family member who has been injured in the line of duty.

Qualifying Exigency Leave - The employee may take FMLA leave to handle various non-medical exigencies arising out of the fact that the employee's spouse, son, daughter or parent is on active duty or on call to active duty status. This type of FMLA leave is subject to a maximum of 12 weeks in a year. Qualifying exigencies include:

  • Short-notice deployment (active duty within 7 days or less)
  • Military events and related activities
  • Childcare and school activities (not routine childcare)
  • Financial and legal arrangements
  • Counseling related to the call to active duty
  • Rest and recuperation (up to 5 days)
  • Post-deployment activities
  • Additional activities as agreed with employer

Military Caregiver Leave - The employee may take FMLA leave to care for a spouse, parent, son, daughter or "next of kin" who is a current (not former) member of the armed forces who has had a serious injury or illness incurred in the line of duty. This type of leave is subject to a maximum of 26 workweeks during a 12-month.

Are you a covered employer?

FMLA covers private employers who directly employ 50+ employees and the state and any political or civil subdivision of the state and cities.

In joint employment situation, only the "primary" employer who is responsible for hiring, firing, assignments, compensation and benefits would be responsible for providing notices concerning FMLA leave. The regulations specify that when a professional employer organization simply performs administrative functions such as payroll, benefits, regulatory paperwork, and employment policy updating work, the PEO is not considered a joint employer with its client company.

Is an employee eligible?

An employee is eligible for FMLA leave if the employee has been employed by the employer for at least 12 months and worked at least 1,250 hours in the preceding 12-months and the worksite has 50 or more employees within 75 miles of that worksite. Final regulations provide that the 12 months of employment do not need to be consecutive; breaks in service will be counted, but don't need to count service beyond 7 years ago.

Employer Notice Requirements

There are new mandatory notices that covered employers must issue to employees. Failure to provide the required written notice can be considered "interference" with employee's FMLA rights. Employers covered by the FMLA must post a general FMLA notice even when they have no FMLA-eligible employees.

General Notice - Covered employers must post a general FMLA notice even if they do not have any employees eligible for FMLA leave. This can be included in the Employee Handbook or other written benefits communication. If the employer does not have employee handbook/other written benefits policy, the employer must distribute a copy of the General Notice to each new employee upon hire.

Notice of Eligibility and Rights & Responsibilities - Must be provided within five days of either a request for leave or after learning that a leave may be FMLA-qualifying. The employer must notify the employee whether he or she is eligible for FMLA leave and if not must provide a reason or reasons for the employee's ineligibility and notify the employee of his or her obligations and expectations while on FMLA leave, including employee's right to substitute paid leave, medical premium contributions, and required updates of medical certification and consequences for not providing them.

Designation Notice - Must be provided within 5 days of when the employer has enough information to make a decision on whether the event qualifies for FMLA leave. The employer must notify the employee whether or not the leave is approved and designated as FMLA and how much time; whether the employer will require substitution of paid leave; and whether a fitness for duty certificate is requires or if additional information is required. If the duration of the leave is unknown, the employer is required to inform the employee of the number of hours counted against the FMLA leave entitlement only upon employee request, and no more often than every 30 days if FMLA leave was taken during that period.

Employee Obligations

The employee is required to provide 30 days advance notice for a foreseeable leave or as soon as practical for a non-foreseeable leave, up to 2 business days following an absence and follow the company's policies and procedures for requesting leave unless there are unusual circumstances.

Certification or Military Documentation

Employer may require the employee to provide within 15 days, the appropriate certification or military documentation based on the type of leave requesting. If an employer receives an incomplete or insufficient documentation, it must notify the employee in writing of the problem, state what information is necessary to correct it, and give the employee seven days to do so.

Light-Duty Work

Time spent performing voluntary light-duty work does not count against the annual 12-week allotment of FMLA leave, and the employee's right to job reinstatement during the light-duty period.

Benefits During FMLA Leave

The employer must provide the benefits under the same terms and conditions during the leave. It is the employee's responsibility to make payments of premiums as described in the Rights & Responsibility Notice. The employees must be given a 30 day grace period to make payments, and 15 days notice before cancellation of benefits. Even if coverage has been cancelled due to non-payment of premiums, coverage must be reinstated at the end of the leave.

Serious Health Condition

The current regulation requires an employee to establish a serious health condition if he or she is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a healthcare provider which must occur within 30 days of the start of the period of incapacity. The first visit must occur within 7 days of the start of the incapacity. Second, it defines "periodic visits to a healthcare provider" for chronic serious health conditions as at least two visits to a healthcare provider per year.

Perfect Attendance Awards and Bonuses

The current regulation allows employers to disqualify an employee from an award or bonus for failing to meet an achievement or specified goal because he or she took FMLA leave, as long as the employer treats employees taking non-FMLA leaves in an identical way.

FMLA Intermittent Leave

Eligible employees are entitled to take intermittent leave or leave on a reduced schedule when their own "serious health condition" renders them unable to do their job. Any employee who takes intermittent FMLA leave has a statutory obligation to make a reasonable effort to schedule leave as not to disrupt business. Intermittent leave is taken in separate blocks of time for a single illness or injury. The employer must account for the intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer allows for other forms of leave provided it is not greater than one hour.

Reinstatement from FMLA Leave

Employers can require periodic updates on their status and continued intent to return to work. Employee must be reinstated to the position previously held or a similar position.

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