FMLA Expands Coverage to Military Caregivers, Restructures Procedures

An old adage holds that “if it ain’t broke, don’t fix it.” Nonetheless, two years ago the Department of Labor (DOL) began a review and commentary process regarding 1993’s Family and Medical Leave Act (FMLA), largely due to employer complaints about administrative nightmares. Then, in 2008 Congress passed and President Bush signed the National Defense Authorization Act (NDAA), which further mandated that families of service members be included in FMLA coverage. (29 U.S.C. 2612(a)(3)–(4))

The two processes came together on Nov. 17, 2008, to create what is known as 29 CFR 825, The Family and Medical Leave Act of 1993, Final Rule, which was published in the Federal Register on that day and took effect on Jan. 16, 2009.

This revision and update of the Family Medical Leave imposed new requirements on both employers and employees. What exactly are they, and are they here to stay?

The Old and the New

One thing that did not change but may in coming months is the requirement that all employers with 50 or more employees in a 75-mile radius offer FMLA unpaid leave to their employees. So, for instance, if Owner A operates three fast-food restaurants in that radius and employs a total of 50 people or more, Owner A must offer all of them FMLA even if each location has fewer than 50 employees.

Under FMLA, a qualified employee in any defined 12-month period is entitled to 12 weeks of unpaid leave, coupled with continued health insurance coverage (if offered by the employer), for reasons of injury or illness—either the employee’s or a family member’s—or for caring for a new child, naturally born, adopted or taken into foster care. (29 CFR 825.112)  This has not changed.

However, military leave is now available for up to 26 weeks to care for an employee’s family member in the armed forces who is undergoing medical treatment, recuperation or therapy, or is on the temporary disability retired list. (29 CFR 825.127) There is also a category for a “qualifying exigency” for employees who have family members in the National Guard or Reserves (but not full-time, active duty military personnel). Such exigencies are fairly broadly defined and cover activities such as attending military events, spending time with a family service member on temporary leave, helping with “short-notice deployment,” and more. (29 CFR 825.126)

Under FMLA, sons and daughters must be 18 years or age or younger, or incapacitated and requiring assistance, for their related employees to qualify for leave, but for military caretaker leave, the age limit is waived for obvious reasons. FMLA leave is also available to sons and daughters of parents in the military, as it is to care for parents under regular FMLA.

To qualify for any type of FMLA leave, an employee needs to have worked for the employer for at least 1,250 hours in the previous 12 months, which don’t have to be consecutive months. In cases of broken employment, the 12-month qualifying period can extend backward up to seven years. This has been extended from the previous five years.

In addition, for the sake of calculating employees’ 12-month windows of FMLA eligibility, employers can establish the start date to coincide with either the calendar year or each employee’s job start date, or by using other criteria such as fiscal year. Whatever the definition, it must be applied consistently and uniformly.

FMLA leave can also be taken on an intermittent basis. For instance, an employee may need to take one day, or a portion of a day, on a frequent basis for medical treatment or to help a family member obtain treatment. Some clarification on how to calculate partial days is offered in the Final Rule, hopefully ending confusion in this area.

Employers’ Rights and Obligations

First, the employer must have in place a notification poster conspicuously displayed. According to 29 CFR 825.300(a), "Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division."

Beyond the poster and concurrent with it, the employer must establish FMLA policies and procedures and make them readily available to all employees, which can be done through an employee handbook, printed/posted notices, and in some cases electronically.

Note here that employers can now require employees to exhaust paid leave, including vacation and sick days, as part of the 12 weeks of eligibility, but this must be specified in the company policies. This has been clarified by the new regulations. (29 CFR 825.207)

Second, according to 29 CFR 825.112, "Employers covered by FMLA are required to grant leave to eligible employees." An employee cannot be asked to waive his or her eligibility for FMLA leave.

Third, though FMLA leave is unpaid, the employer must retain benefits in effect during the period of absence, and must return the employer to his or her previous position or one substantially similar, with no retaliation and no reduction in hours or pay, once the leave is finished.

Fourth, employers must maintain and retain records of the dates, amounts and circumstances of FMLA leave for all employees. Forms are provided for this purpose by the DOL.

Fifth, the employer who receives an FMLA leave request must issue both a Rights and Responsibilities notification (29 C.F.R 825.300(c)) and a Designation Notice to the employee (29 C.F.R 825.300(d)). The former spells out the employee’s rights and duties in taking FMLA leave and lists the consequences of not acting accordingly, while the second notice authorizes the leave. These forms are new requirements and are offered by DOL, though employers can devise their own to conform to published standards.

In addition, employers may—but are not required to do so by the Final Rule—require medical certification for leave time and also a return-to-work authorization from a qualified health provider, but these requirements must be issued in writing to the employees.

The Final Rule retains the original six definitions of “serious health condition,” but now spells out criteria for medical certification should the employer decide to require it. The determination is generally based on a formula of visits to a health care provider in connection with an incapacitating injury or illness. (29 C.F.R 825.115)

The rules also specify the time-frame in which employers can request medical certification from FMLA leave takers, usually within five days from the request for leave or five days from the onset of leave. (29 C.F.R 825.307)

In a departure from previous FMLA rules, the FMLA now allows certain company officials (but not the employee’s direct supervisor) to clarify and authenticate a medical certification provided by the employee by contacting the health care provider directly.

Employees’ Rights and Obligations

An employee requesting leave should do so 30 days in advance unless the need for the leave arises on shorter notice. In that case, the employee should notify the employer either the same day or the next business day if the qualifying event falls on a weekend, holiday or after work hours. (29 C.F.R 825.302)

In a new clarification, the employee must now use the company’s standard procedures for requesting FMLA leave just as they would for other requests such as a sick day or PTO (paid time off). This puts a new responsibility on employees who previously could inform the employer of having taken the leave AFTER they returned to work.

Employees who accept “light duty” assignments due to a health condition will not have that time counted against their FMLA leave and will still be eligible for 12 weeks under other contingencies. (29 C.F.R 825.220)

However, according to how the employer establishes policy, employees returning from FMLA leave may not be eligible for perfect attendance awards or bonuses based on attendance. (29 C.F.R 825.215) The last two are both changes from previous regulations.

FMLA Regulations Still in Flux

When the Final Rule was published, everyone hailed the inclusion of military leave, but pro-labor groups complained that the requirements had shifted too much in favor of employers over employees. Therefore, it is not unreasonable to expect the Obama Administration and the pro-labor Democratic Congress to revisit some of these requirements and regulations. President Obama himself wants to lower the bar on FMLA to employers with just 25 employees. In addition, a House committee currently has before it a proposed legislative initiative to fold part-time employees into FMLA by eliminating the 1,250-hour requirement from the 12 months of employment qualification.

It must also be noted that some states also have their own set of FMLA rules that may expand on and augment the national law. New Jersey, for instance, in 2008 instituted a paid family leave plan, which largely tracks an earlier, first-in-the-nation plan in California, where six weeks of paid FMLA-like leave are available every 12 months with only a seven-day waiting period after being hired.

Personnel Concepts will keep everyone concurrent with state and federal regulations and update the public on any changes or proposed changes on its Web site at PersonnelConcepts.com and in periodic communications to newsletter subscribers.

Meanwhile, those of you who are responsible for the FMLA program at your places of work, along with human resources professionals and other administrators, should consider acquiring Personnel Concepts’ muscular toolkit known as the FMLA Regulatory Updates Compliance Kit.

About the author:
Gary McCarty is a researcher and Web Content Manager for Personnel Concepts.

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