FMLA Revisions

In one of the Bush administration’s final regulatory acts, the U.S. Department of Labor has issued 762 pages of revisions to the Family and Medical Leave Act. The changes have been two years in the making and not unexpectedly are more favorable to employers than employees. Family advocacy groups are pretty unhappy with the new regulations. But that doesn’t mean that the FMLA will ever be easy to apply in your workplace.

If you don’t know the basics of FMLA, it entitles employees to take 12 weeks unpaid leave to deal with the birth or adoption of a child, the employee’s serious health condition, a family member’s serious health condition, or a parent, child or spouse’s military deployments, including 26 weeks if a military family member is wounded. FMLA protects the employee’s health care benefits while on leave. Once the employee has used up his twelve weeks, you must return him to his old position or an equivalent position with the same benefits, compensation and status.

By the way, if you have less than 50 employees (full- or part-time), you can stop reading right now. FMLA only applies to companies that are larger than yours.

For those of you who have more than 50 names on your payroll, here are a few of the numerous changes you must understand by the time the new FMLA regulations go into effect on January 16, 2009:

  • Many of the new regulations expand on the new requirements enacted in January 2008 that extended leave to military families. That law required employers to offer 12 weeks of FMLA to family members of reservists or National Guard members who have “qualifying exigencies”. This month’s regulations define “qualifying exigencies” as short-notice deployment and military events, but also child care and school activities, financial and legal arrangements, counseling, rest and recuperation and post-deployment activities. In other words, if you have the spouse of a National Guard member working for you and his/her unit is activated, you’ll need to let the spouse take time off for many different reasons without putting the spouse’s job in jeopardy.
  • One of the most difficult parts of the FMLA is knowing whether an employee’s absence from work (even for a few days) counts as a “serious health condition” that requires the employer to issue an FMLA notice to the employee to start the leave clock running. The new regulations help some in defining “serious health condition”, if you call six different definitions “help”! One of those definitions is if the employee takes more than three consecutive days off for health reasons and has two visits to the doctor within 30 days of the incapacity. So your employee’s run-of-the-mill sinus infection with one visit to the doctor for antibiotics and a couple of days sick leave does not constitute a “serious health condition”.
  • Employees are required to follow the employer’s regular call in procedures for reporting an absence. Therefore, if an employee is a “no call, no show” for several days, you can go ahead and fire her without worrying about FMLA liability if you have a policy in writing making your absence reporting procedures clear.
  • Employers now have five business days to provide the FMLA notice rather than two days.
  • One positive regulation from a business perspective is the rule that confirms that an employee may waive his past FMLA claims voluntarily. One federal court of appeals has ruled otherwise, causing consternation among employment lawyers. But now it is clear that the DOL won’t try to stop employers from having their departing employees sign severance agreements that waive any later lawsuit for alleged violations of the FMLA (along with every other employment claim we can possibly get waived).

Leave a Reply