FMLA overhauled

The Family and Medical Leave Act
(FMLA) was amended in 2008, with
new regulations taking effect on January 16, 2009. Congress amended the
FMLA via the National Defense Authorization Act (NDAA) to create two new types
of job-protected leave for eligible employees of covered employers.

The NDAA added “caregiver leave,” effective January 28, 2008, which allows employees to care for family members injured
while on active duty in the U.S. military. On
January 16, 2009, “exigent circumstances
leave” took effect, which allows family
members to provide assistance to U.S. military personnel under other urgent circumstances, unrelated to an injury.

Also, the Wage and Hour Division of the
Department of Labor (DOL) had been
developing revised FMLA regulations for
years, in response to court decisions and
feedback from employers. Rather than roll
out two sets of new regulations, DOL
addressed all of these changes in a single,
new regulation.

“Now more than ever, employers must
understand the FMLA, inside and out,”
says Audrey E. Mross, a shareholder at
Munck Carter, LLP.

Smart Business spoke with Mross about
the FMLA changes and how employers can
stay on top of them.

Did the definitions of ‘covered employer’ and
‘eligible employee’ remain the same?

Yes and no. The FMLA still applies to
employers with 50 or more employees in
the U.S., despite repeated attempts to
lower that threshold to 25 employees. If
your company is close to 50 employees, if
you’ve merged with another entity or if you
rely heavily on temporary help, it’s best to
talk to a FMLA specialist to determine if
you are a covered employer. As for eligible
employees, the rules remain the same
when applied to either family leave (time
off for birth, adoption or foster placement
of child with the employee) or medical
leave (serious health condition of the
employee or the employee’s spouse, parent
or child), but they are different for the two
types of leave added by the NDAA.
Employees eligible to take caregiver leave
are the injured service member’s spouse,
parent, child or relative who is ‘next of kin.’
In the case of exigent circumstances leave,
it is the service member’s spouse, parent or
child who can take leave; however, this
type of leave does not apply to service
members who are in the regular armed
forces. It’s limited to those who are in the
National Guard or the Reserves.

Did the amount of FMLA leave change?

Again, yes and no. Eligible employees can
still take family or medical leave for up to
12 weeks in a 12-month period (the 12-month period should be predetermined by
the employer). Caregiver leave is up to 26
weeks in a single 12-month period, so that
12-month period will not necessarily coincide with the one designated by the
employer for family and medical leave
usage. Exigent circumstances leave is limited to 12 weeks and can be tied to the
same 12-month period an employer designates for family and medical leave usage.
The amounts of leave under the old FMLA
and the new NDAA are coextensive so, for
example, an employee who takes leave for
a newborn and another leave for exigent
circumstances is capped at 12 weeks,
rather than being able to take 24 weeks. An
employee who takes leave for her own
serious health condition and another leave
for caregiver leave is capped at 26 weeks,
rather than being able to take 38 weeks.

What other changes require an employer’s
immediate attention?

If you have an employee who goes on
leave for a qualifying reason but has not
worked for you for at least 12 months
when the leave commenced, you can now
designate the leave as FMLA (going forward only) as of the 12-month mark. The
12 months of employment does not need to
be consecutive, so you can count prior
time worked in a rehire situation, but you
don’t have to count employment that
occurred before a break in service that lasted seven years or longer.

The employer may charge an employee
with more FMLA time than is actually
needed, when the nature of the job means
the employee cannot arrive to work late.
For example, if an employee needs only
four hours for a doctor’s appointment, but
she’s a flight attendant and the appointment causes her to miss a scheduled
departure, she can be charged with FMLA
for the entire shift missed and not just the
four hours needed for the appointment.

Employers now can deny or prorate perfect attendance and/or production bonuses
based on absence and/or lowered production caused by a leave taken through
FMLA, so long as similar leaves of absence
are treated in the same manner.

Also, FMLA claims can be settled or
released without DOL or court approval, so
long as they are not prospective in nature.
And, employers now have five days (up
from two) to designate a leave as FMLA-qualifying.

AUDREY MROSS is a shareholder at Munck Carter, LLP, leading the labor and employment group. Reach her at (972) 628-3661 or
[email protected].