Law Firm Reviews Changes to FMLA
More employees are now being covered by the Family and Medical Leave Act, and both employers and workers may find the law easier to understand, according to Pepper Hamilton LLP.
Earlier this year, Congress extended the Family Medical Leave Act (FMLA) to cover employees caring for members of the military who become ill or are injured in the line of duty--the first significant changes to the law since it was enacted in 1993. The U.S. Department of Labor also has proposed changes to the law to reduce its complexity.
Typically, the FMLA gives eligible workers up to 12 weeks of unpaid leave during any 12-month period for reasons that include treating their own serious health condition, or caring for a newborn or a sick family member. The law generally covers employers with 50 or more employees. Eligible employees are those who have been employed for at least 12 months total with an employer, and who have worked at least 1,250 hours during the 12 months immediately preceding the leave.
Congress offers FMLA to the military. The FMLA was expanded in January to enable employees to care for eligible family members who are military service members and become ill or injured in the line of duty. The law allows care-givers for military service members to take up to 26 weeks of unpaid leave--more than doubling the amount of time an eligible employee could have previously taken under the FMLA.
“Employers who are covered by the FMLA should immediately revise their leave policies and practices to conform to this change in the law. These employers also should consider posting a short memo, or otherwise letting employees know about the new law,” said Amy G. McAndrew, an attorney with Pepper Hamilton LLP.
Changes pertaining to military members, which were enacted as part of the National Defense Authorization Act for 2008 (NDAA), also permit an employee to take FMLA leave for “any qualifying exigency” relating to the active duty service of an immediate family member. The new regulations will define the term “any qualifying exigency.” The U.S. Department of Labor (DOL) has not yet come up with regulations, and these provisions will not go into effect until that happens, according to McAndrew.
“It is difficult to predict how exactly the DOL will define exigency. Congress intended to provide service members and their families with time to get their affairs in order before and after deployment to active duty. In the interim, the DOL is encouraging employers to provide this type of leave to eligible employees. In advance of more guidance from the DOL, employers should carefully consider any such requests on a case-by-case basis, being careful to be consistent,” said McAndrew.
FMLA proposed regulations. Just two weeks after the NDAA became law, the DOL published hundreds of pages of proposed changes to the FMLA regulations. “While the proposals do not make any sweeping changes, they may serve to clarify a law that many employers and employees have found complex, and which many human resource professionals have found difficult to administer,” said McAndrew.
One of the most significant changes would be to address the controversial Fourth Circuit Court of Appeals decision in Taylor v. Progress Energy. In that decision, the court held that an employee and employer may not independently settle past claims under the FMLA without the approval of the DOL or a court. McAndrew said instead, the proposed regulations reject the Fourth Circuit’s decision, and explicitly permit employees and employers to agree voluntarily to the settlement of past claims without having to obtain permission from the DOL or a court.
Other proposed changes assist employers and employees in the day-to-day administration of the FMLA. Some of the most significant proposed changes address the administration of intermittent leave under the FMLA. For example, under the proposed regulations, an employee who takes intermittent leave would be required to make a “reasonable effort” (as opposed to an “attempt,” which is what currently is required) to schedule leave so that it does not unduly disrupt the employer’s operations.
Further, the proposed regulations clarify that an employee’s healthcare provider must certify whether intermittent or reduced schedule leave is medically necessary, and would require employees using intermittent leave time to submit recertifications annually, if the condition lasts more than a year, or every six months if the duration of the condition is described as “indefinite,” “unknown” or “lifetime.”
Without unusual circumstances such as hospitalization, the new regulations require employees using intermittent leave to furnish a fitness-for-duty certificate every 30 days if the employer has reasonable concerns regarding workplace safety.
The proposed regulations also make changes to the medical certification process. “Employers would be allowed to directly contact an employee’s health care provider to authenticate and/or clarify a medical certification provided under the FMLA. Under current regulations, the employer is required to use its own health care provider to contact the employee’s healthcare provider, which can result in delays, inefficiencies, and expense,” said McAndrew.
Source: Pepper Hamilton LLP; www.pepperlaw.com.
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Earlier this year, Congress extended the Family Medical Leave Act (FMLA) to cover employees caring for members of the military who become ill or are injured in the line of duty.