FMLA Changes for One and All

[I apologize for the delinquent postings during the last several weeks; however, the combination of the holidays and a nasty (and reoccurring) winter cold made regular updates impossible.]

As of last week, covered employers are required to come into compliance with the Department of Labor’s new regulations on the Family and Medical Leave Act (“FMLA”).  These new requirements are causing a number of employers to scramble to bring their existing policies up to date and, as a result, a number of articles have been published by various employment magazines, blogs and newsletters to help overwhelmed employees and employers.  One article in particular, the cover story of the January 2009 Public Safety Labor Newsletter, does an outstanding job of summarizing the most significant changes in the over 700 pages of new regulations.  Several of those changes are identified below:

1. Military Leave – the FMLA now provides medical-oriented leave for employees caring for family members with serious injuries or illnesses incurred while on military duty.  Rather than 12 workweeks of leave, eligible employees are entitled to 26 workweeks of leave to care for a covered service member.  In addition, this military leave is available to a wide range of family members, such as spouses, children, parents, and “next of kin” (which is a new term that does not apply to regular FMLA leave).  Another major difference between military leave and the other types of FMLA leave is that employers are prohibited from requested 2^nd or 3^rd opinions from doctors and may not require re-certification.

2. Qualifying Exigency Leave – the FMLA added another type of military leave called “Qualifying Exigency Leave,” which an employee may us for 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.  The regulations identified several reasons for this type of leave varying from counseling to childcare.  This type of leave can be used a maximum of 12 weeks.

3. Certification – the new regulations attempt to streamline the certification process and allow an employer to directly contact an employee’s health care provider to clarification certification forms. The new regulations also require the employer to notify the employee in writing if the medical certification is incomplete or insufficient and to specifically identify the missing or insufficient information.

4. Paid Leave – under the new regulations, an employer may restrict an employee’s right to use paid leave in conjunction with FMLA leave as long as that is consistent with the employer’s policies.

5. Light-Duty Work – the regulations clarify that time spent performing light-duty work does not count against the 12-week allotment of FMLA leave.

6. Waiver of Rights – the regulations state that employees may voluntarily settle FMLA claims or waive FMLA rights without approval from the DOL.

For more information on these categories and/or the other changes to the FMLA, I would encourage you to read the January 2009 Public Safety Labor Newsletter.