DOL ISSUES NEW REGULATIONS UNDER THE FAMILY MEDICAL LEAVE ACT
The Department of Labor has issued extensive new regulations under the Family and Medical Leave Act (FMLA) which take effect January 16, 2009 and will require employers to change their practices and written policies.
Background
The FMLA, enacted in 1993, entitles eligible employees to up to 12 weeks of unpaid leave for the employee’s serious health condition, the birth and care of the employee’s newborn or newly adopted child, and the care of an immediate family member with a serious health condition. Earlier this year, the FMLA was amended to give leave to prepare for the deployment of a family member to active duty in the Armed Forces or to care for a family member who has served in the Armed Forces.
Revising the FMLA
The following highlight the more significant changes made by the new regulations:
“Serious Health Condition.” Employees asserting that they have chronic illnesses must visit a health care provider twice in a year. Employees claiming incapacity must visit a health care provider twice within 30 days of the incapacity.
Employer Coverage. Professional employer organizations (PEOs) that perform only administrative functions (such as managing payroll or benefits) are not joint employers for the purposes of counting the number of employees to determine whether either entity is a covered employer. All other employee leasing companies will be considered joint employers with the recipient employer.
Primary Worksite. If an employee is jointly employed by two employers, the primary employer’s location remains the primary worksite for one year. Once the employee has been stationed at the secondary employer’s site for one year, that site becomes the employee’s primary worksite.
Scheduling Intermittent Leave. Employees seeking intermittent leave of a foreseeable nature must make a “reasonable effort” to schedule leave so as not to unduly disrupt an employer’s operations.
Substitution of Paid Leave. Employers may require employees to follow regular policies regarding the use of paid leave when an employee seeks to use paid leave for FMLA leave. If the employee does not follow the normal policies, the employer may treat the FMLA leave as unpaid.
Holidays. When a holiday falls within a partial week of FMLA leave, the holiday is not counted as FMLA leave unless the employee would otherwise have been required to work on the holiday. If the holiday falls within a full week of FMLA leave, the entire week is counted as a week of FMLA leave.
Bonuses. Employers can disqualify employees from achievement bonuses if employees fail to meet the goal because of the FMLA leave if employees on other leaves are treated in the same way. Employers still cannot count FMLA leave against employees under “no-fault” attendance policies.
Waivers. Employees may enter into settlement agreements that release past claims under the FMLA. Employees may not waive future claims.
Light Duty Assignments. If an employee accepts a light duty assignment before the exhaustion of FMLA leave, the employer’s reinstatement obligation is deferred until the completion of the light duty assignment or the expiration of the 12-month period in which the FMLA leave was taken.
Employer Notice Requirements. Employers must notify the employee that leave is designated FMLA leave within five days after the employee provides notice of leave. The designation may be retroactive if it “does not cause harm or injury” to the employee.
Employee Notice Requirements. An employee must give at least 30 days’ advanced notice for foreseeable leave. For unforeseeable leave, employees must give notice “as soon as practicable,” which is defined to mean “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.”
Medical Certification. While health care providers still cannot disclose an employee’s medical information without his or her consent, employers can use an employee’s refusal to provide consent as grounds to question a certification. Employers can require annual medical certification when the serious health condition extends for more than one year.
Guidance for Leave under the NDAA
The new regulations also provide guidance about the FMLA provisions of the National Defense Authorization Act of 2008 (NDAA).
Exigency Leave. An eligible employee may take leave under the following “exigencies” arising out of a covered military member’s active duty status, notification of an impending call, or order to active duty status: (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; and (7) post-deployment activities.
Care for Service Member. Eligible employees may take up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a “serious injury or illness” incurred in the line of duty. “Serious injury or illness” includes conditions where the service member is “(1) undergoing medical treatment, recuperation, or therapy; or (2) otherwise in outpatient status; or (3) otherwise on the temporary disability retired list.”
Eligible Employees: “Next of Kin.” A spouse, son, daughter, parent, or next of kin of the covered service member is eligible for the leave. Next of kin includes a relative designated as such by the service member. If there is no designated next of kin, all family members meeting the definition of next of kin are entitled to the FMLA leave—consecutively or simultaneously.
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