The new FMLA Featured

8:00pm EDT March 26, 2009

The Family and Medical Leave Act(FMLA) is going through somechanges, and business owners willneed to pay particular attention in 2009to make sure they stay compliant.

As always, the FMLA requires that covered employers grant eligible employeesup to 12 work weeks of unpaid job-protected leave during a 12-month period for the birth and care of a newbornor adopted child; to care for an immediate family member (spouse, child or parent) with a serious health condition; orwhen the employee has a serious healthcondition.

“The final rule that updates the FMLAregulations went into effect on January16, 2009,” says Jill Luft, an officer in theLabor & Employment Practice Group atGreensfelder, Hemker & Gale, P.C. “Theregulations include new military familyleave entitlements, as well as revisionsdesigned to clarify the requirements thatthe FMLA imposes on both employeesand employers.”

Smart Business spoke with Luft aboutthe new FMLA changes and howemployers can stay on top of them.

What kinds of changes have been made tothe FMLA?

To be eligible, an employee must haveworked for a covered employer for atleast 12 months, must have worked atleast 1,250 hours over the previous 12-month period, and must work at a location where at least 50 employees areemployed by the employer within 75miles. The new regulations establishthat the 12 months of employment donot need to be 12 consecutive months.Generally, any period of employmentprior to a continuous break in service ofseven years need not be counted whendetermining whether an employee iseligible.

The new regulations also clarify thedefinition of ‘serious health condition’and set parameters for when visits to ahealth care provider by the employeemust occur. The new regulations alsorequire an employee who takes intermittent FMLA leave to schedule medical treatments so as not to unduly disruptthe employer’s operation.

And, the new regulations allow anemployer to contact the employee’shealth care provider directly for the purposes of clarifying and authenticatingthe medical certification. While theemployee is not required to permit thiscommunication, if the employee deniesthe employer permission and does nototherwise clarify an unclear certification, the regulations now say thatthe employer can deny the FMLA leavealtogether.

The regulations also allow an employerto deny a perfect attendance award to anemployee who took a FMLA leave, solong as the employer treats employeestaking non-FMLA leave the same way.

The new regulations also clarify thattime spent by an employee working lightduty does not count against the employee’s FMLA entitlement. So an employee’sright to have his job restored is actuallyheld in abeyance while the employeeperforms light duty or until the end ofthe 12-month period that the employeruses to calculate FMLA leave, whicheveroccurs first.

What are the new rules concerning militaryfamily leave entitlements?

The new regulations provide additionalleave rights to eligible employees withfamily members serving in the military.This is actually part of the larger militaryspending bill called the National DefenseAuthorization Act of 2008, and there aretwo new types of leave. MilitaryCaregiver Leave provides 26 weeks ofleave in a 12-month period to an eligibleemployee to care for a family member inthe armed forces with a serious injury orillness that occurred in the line of dutywhile on active duty.

Qualified Exigency Leave provides 12weeks of leave to an eligible employeewhose family member is on active dutyin the National Guard or Reserve or hasbeen notified of an impending call ororder to duty. The leave is for a ‘qualifiedexigency,’ and there is a non-exhaustivelaundry list of examples of qualified exigencies in the new regulations. Theyinclude short-notice deployment, military events and related activities, child-care and school activities, making financial and legal arrangements, counseling,rest and recuperation, post-deploymentactivities and additional activities agreedto by the employer and the employee.

What happens if employers do not complywith the new FMLA regulations?

If an employer does not comply withthe FMLA, an employee can file a complaint with the Department of Labor orfile a lawsuit in state or federal court.Normally, if the lawsuit is filed in statecourt, the employer will remove the caseto federal court. If an employer is foundto have violated an employee’s FMLArights, then the employee is entitled torecover actual damages, interest, equitable relief, attorneys’ fees and costs.

If the violation is found to have beenwillful, the employee is also entitled toliquidated damages in an amount equalto the actual damages.

JILL LUFT is an officer in the Labor & Employment Practice Group and member of the Board of Directors of Greensfelder, Hemker &Gale, P.C. Reach her at (314) 516-2653 or jll@greensfelder.com.