Outline of 2009 FMLA Regulations
The Department of Labor has issued new regulations regarding the Family Medical Leave Act that take effect on January 16, 2009.
Leave for Military Expanded
In January of 2008, the National Defense Authorization Act amended the FMLA to provide for two new types of military-related leave, which the new regulations seek to define. The latest revision of Civil Treatment for Managers includes a description of these new leaves.
Qualifying Exigency: Eligible employees can take up to 12 weeks of FMLA leave if there is a “qualifying exigency” arising from the employee’s child, parent, or spouse being on active duty or being notified of an impending call to active duty. The regulations define a qualifying exigency as follows:
- Short-notice deployment of seven or less calendar days prior to the date of deployment: In this case, the FMLA leave would be seven or less calendar days prior to the deployment.
- Military events and related activities: FMLA leave can be taken for official ceremonies, programs, and events sponsored by the military or to attend family support or assistance programs or informational briefings sponsored or promoted by the military or other specified organizations.
- Childcare and school activities: Leave can be taken to provide or arrange for childcare or schooling for the minor children of the military member. Also, school or daycare meetings with staff to discuss discipline or parent-teacher conferences and meetings with school counselors are covered.
- Financial and legal arrangements: Time off needed to make legal or financial arrangements, such as time to prepare a power of attorney or to transfer bank account signature authority, is covered. Also covered is time needed to act as the military member’s representative with regard to issues concerning military service benefits.
- Counseling: If the employee, military member, or military member’s minor children need counseling from issues arising from the active duty or call to active duty, time off can be taken to attend counseling.
- Rest and recuperation: Up to five days can be taken to spend time with a military member who is on short-term rest and recuperation leave.
- Post-deployment activities: Eligible employees can take time off to attend arrival ceremonies and other official programs sponsored by the military. These post-deployment activities also include events arising from the death of the military member while on active duty status, such as time to make funeral arrangements.
- Additional activities: This includes time off for any other event that arises out of the military member’s active duty or call to active duty so long as both the employee and employer agree the event qualifies as an exigency and can agree to the timing and duration of the leave.
For Care of Injured Veteran: A parent, child, spouse, or next of kin of a military member recovering from a serious illness or injury sustained in the line of duty can take up to 26 weeks of protected FMLA leave in a single 12-month period to provide care for the military member.
- The new regulations clarify that this leave time encompasses time off needed to provide for both physical and psychological care. Also, the employee does not have to be the only available family member to take this leave. Even if the military member’s condition is not intermittent, the employee can take intermittent leave to provide care as needed.
- Also, the regulations specify that the “next of kin” is the nearest blood relative, other than the spouse, parent, or child. The next of kin can include anyone with legal custody of the military member, such as siblings, grandparents, aunts and uncles, first cousins, or anyone the military member has designated in writing as the nearest blood relative for purposes of military caregiver leave.
Perfect Attendance Awards: The new regulations allow those who have taken FMLA leave to be denied bonuses or other payments for failure to achieve perfect attendance, as long as those who have taken non-FMLA leave are also denied the awards.
Definition of Serious Health Condition: If someone has a serious health condition because of three or more days of incapacity plus two visits to a healthcare provider or continuing treatment by a healthcare provider, the new regulations specify that the first visit to the healthcare provider must take place within 7 days of the first day of incapacity. Under the “two visit” definition, the second visit must take place within 30 days of the first day of incapacity.
If someone is taking leave for periodic visits to a healthcare provider for a chronic condition, “periodic” is defined as at least two visits per year.
Light Duty is not Leave Time: The new regulations clarify that when an employee is working in a light duty assignment, this is working time and not FMLA leave time.
Showing of Individual Harm: In the past, when employers failed to give appropriate notice to an employee that leave was being designated as FMLA, the employee was deemed to be entitled to another 12-week period of leave, beginning from when appropriate notice was given. The new regulations remove this penalty and instead provide that an employer may be liable when an employee suffers individualized harm as a result of the employer’s failure to provide notice.
Other new regulations also make changes to employer and employee notice requirements, the procedures for substituting paid leave for FMLA time, the medical certification process and timing, and fitness-for-duty certifications.
The following website covers the new regulations in their entirety: http://www.dol.gov/federalregister/HtmlDisplay.aspx?DocId=21763&AgencyId=10&DocumentType=2
Many of the new regulations will require employers to revise policies and forms, and the Department of Labor also has provided some new mandatory forms. You should seek advice from your legal counsel to ensure you are in compliance with these newest regulations and others. Remember, your managers do not need to be legal experts, but they do need to Get Help when issues like these come up under the FMLA.
