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FMLA: You've Asked, We Answered

08/22/08

How Do the New Family and Medical Leave Act Amendments Affect My Business?

A: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.

Many of our customers have contacted us with questions about the FMLA changes, so we sat down with Lillian Mojica, Managing Research Attorney at G.Neil, to get some answers.

Q: Can you explain what the FMLA is and who it applies to?

A: 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.

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: 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.

Q: As an employer, what should I do to comply with the FMLA requirements now that the law has changed?

A: You should inform your employees about the recent changes, including the posting of the temporary FMLA poster and the updated FMLA poster as soon as one becomes available. Also, you should revise your current FMLA policies and procedures, and revise your FMLA forms to reflect the recent changes. The ComplyRight™ Employer's Guide to Managing FMLA and downloadable ComplyRight™ Now E-Guide: Understanding the Newly FMLA Military Amendments provide additional information and instructions on what employers must do to comply with FMLA requirements now that the new law has taken effect. The ComplyRight™ Administration Kit provides a complete solution to managing FMLA in today's workplace.

Q: Are other changes to the FMLA coming soon?

A:Public comments on the proposed regulations will be accepted until April 11, 2008 and experts are saying that we will not see final regulations until the end of 2008 Highlights of the new proposed regulations include provisions that:

  • • Amend the definition of a serious health condition;
  • • Make major changes to the medical certification requirement;
  • • Change employer and employee notice requirements;
  • • Permit electronic posting of the FMLA poster if certain requirements are met; and
  • • Increase civil penalties for violating posting requirements.

As always, G.Neil will keep you up to date on any further FMLA developments that affect your business.