On January 28, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008. The new law expands leave protections under the Family and Medical Leave Act (FMLA) for the family members of U.S. soldiers. The FMLA applies to all employers with 50 or more employees on the payroll (including part-timers and employees on leave) in 20 or more workweeks (not necessarily consecutive) in the current or preceding calendar year. The FMLA also applies to public agencies, including state, local and federal employers, and local education agencies -- regardless of employee size. Under the current FMLA, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave during a 12-month period for any the following “FMLA-qualifying” events: - The birth and care of the employee’s newborn child;
- The placement of a child with the employee for adoption or foster care;
- The care of an immediate family member (defined by the FMLA as “child, parent or spouse,” although state and local laws may have broader definitions) with a serious health condition; and/or
- The employee’s own serious health condition.
During FMLA leave, the employer is required to maintain the employee’s pre-existing group health insurance coverage. Upon returning from leave, the employee must be restored to his or her original position or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment, including substantially similar duties and responsibilities. In addition, during FMLA-qualifying absences, employees may not be penalized for violating a company’s attendance policy. Many of our customers have contacted us with questions about how the FMLA changes will impact your leave policies and current labor law postings. Q: What are the new FMLA changes?
A: The new law expands the FMLA by allowing family members of military personnel to take up to 26 weeks of unpaid leave to care for service members suffering from serious injury or illness.
The law also entitles an eligible employee who is the spouse, son, daughter, or parent of a service member who is on active duty (or has been notified that he or she will be called to active duty in the near future) to 12 weeks of FMLA leave. This leave would be available in cases of any "qualifying exigency." Q: When does the new FMLA law take effect?
A: The effective date is January 28, 2008. Q: What does the phrase “qualifying exigency” mean?
A: The new law does not specifically define what “qualifying exigency” means for purposes of determining whether an employee is eligible for the 12 weeks of FMLA leave. However, examples could include overseas assignments, recalls to active duty and troop mobilizations. Ultimately, the U.S. Department of Labor has stated it will issue new regulations for the FMLA expansion as soon as possible. The new regulations are sure to shed some light on exactly what the phrase means, and also provide procedures and clarification for employers. Q: Will the new legislation require me to post a new or updated federal Family and Medical Leave poster?
A: Yes. The information on the poster will need to be updated to include these additional employee leave rights under the FMLA. On February 11, 2008, the Department of Labor issued a temporary poster containing the guidelines for the FMLA expansion. The G.Neil legal team has confirmed with the Department of Labor that this is a recommended poster to be displayed in tandem with the required FMLA poster until a permanent version is available.
Poster Guard Compliance Protection by G.Neil monitors these developments on your behalf and automatically provides you with timely, updated postings in accordance with all posting guidelines, even if the change requires multiple new posters. Q: Will my state FMLA poster be affected by the new law?
A: Typically, state FMLA posters only address state FMLA laws. As such, most state FMLA postings will not be affected by the new federal law. However, many states are passing their own FMLA/military laws and these may require additional state-specific posters. Q: When will the new or updated poster be released?
A: It is still uncertain as to when the new or updated poster will be released. But rest assured, as soon as the new or updated poster is released, G.Neil will automatically provide it to Poster Guard Compliance Protection service customers. |