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FMLA TodayNew
federal regulations and legislation relating to the Family Medical
Leave Act (“FMLA”) are in effect as of January 16, 2009.
These new requirements are extensive and complicated, but
they do require basic action that all covered employers (including
public employers and those in the private sector with at least 50
employees) must take now. There
is a new Notice of Employee Rights and Responsibilities that must be
posted in the workplace and either included in an employee handbook for new employees or
provided separately to new employees when they are hired.
Electronic “posting” may be permissible, but employers
with a significant number of workers who are not literate in English
will have to provide the notice in a language they do understand.
The new notice is available at www.dol.gov/esa/whd/fmla/finalrule/fmlaposter.pdf. The
new FMLA provisions also grant new leave rights to family members of
those in the armed forces, including: (1)
Up to 12 workweeks of unpaid leave during any 12-month period
for otherwise eligible employees (those with at least 12 months of
covered employment and at least 1,250 hours of service over the
previous 12 months) to assist spouses and immediate family members
who are on active military duty by addressing financial and legal
arrangements, arranging for alternative childcare, attending certain
military events, attending certain counseling sessions and attending
post-deployment reintegration briefings. (2)
Up to 26 workweeks of unpaid leave during any 12-month period
for otherwise eligible employees to care for a spouse or immediate
family member who is a current service member with a serious injury
or illness incurred in the line of duty.
Any period of such leave will not
count towards an eligible employee’s separate entitlement to take
up to 12 weeks of unpaid leave to care for a family member with a
serious health condition as previously permitted under the FMLA. Other changes of
interest to employers include: (a)
Employees have to provide 30 days notice of their request to
take FMLA leave if it is practicable to do so.
The first such request with respect to a particular
circumstance does not have to specifically mention “FMLA leave,”
but subsequent employee requests relating to the same circumstance
must do so. (b)
Employers now have up to five business days to respond to an
employee request for FMLA leave or request medical certification
(prior law allowed only two business days). (c)
A bonus or other payment based on achieving a specified goal
(such as hours worked, products sold, or perfect attendance) can be
denied to employees who fail to meet the goal as a result of an FMLA
leave unless it is paid to other employees on equivalent leave status that
does not qualify as FMLA leave. (d)
Spouses with the same employer are limited to a combined
period of 12 weeks of FMLA leave during a single twelve month period
(26 weeks in the case of a leave to care for an injured service
member). (e)
Missed overtime must be counted as FMLA leave time if the
employee misses required overtime because of an FMLA leave. (f)
Past FMLA claims can be settled without DOL or court
approval, a statutory requirement that still applies to any waiver
of prospective FMLA rights. Accordingly,
releases to be signed by employees in connection with employment
severance can be revised to provide for the release of such claims. Recommendation:
HR staff and others with responsibility for employee
benefit compliance should immediately comply with the notice
requirement set out above. Internal
FMLA procedures will also have to be adapted to the new regulations,
which at over 750 pages in length, are both detailed and complex. Please
contact us if you have any questions or would like to discuss this
further.
Andrew
S. Williams
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