Houston, TX — A number of recent changes have been made to the Family and Medical Leave Act (FMLA). These changes will require you as an Employer to change current corporate policies and procedures in order to comply with the new FMLA.

A Refresher on the FMLA

The FMLA is a federal law that became effective on August 5, 1993. Designed to give workers assurance that they will not lose their jobs in order to meet their personal and family obligations, FMLA requires Employers, both private and public, to provide 12 weeks of unpaid leave, continue health care benefits and provide job protection. FMLA applies to employers with 50 or more employees that have been on payroll for 20 or more weeks in a calendar year.

An Employee can be eligible for FMLA if he or she has:

  • Worked for an Employer at least 12 months;
  • Worked at least 1,250 hours in the last 12 months; and
  • Is employed at a location with 50 or more employees are working within a 75-mile radius

Historically, an Employer was required to grant FMLA leave for:

  • The birth and care of a newborn child;
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child;
  • To care for an immediate family member (spouse, child or parent, but not a parent-in-law) with a serious health condition; and
  • When the employee is unable to work due to a serious health condition

Expanded Coverage of the Act

Last year, the Department of Labor (DOL) issued an “Administrator’s Interpretation” which is intended to make clear that an employee can qualify for Family and Medical Leave to care for the son or daughter of a same-sex partner.This is because the statutory definition of “son or daughter” includes a child of a person standing “in the place of parents,” regardless of biological or legal relationship.

The FMLA also now provides for employee leave due to a qualifying emergency or serious health condition related to an employee’s spouse, son, daughter or parent who is a covered military member on active duty.

Updating Your FMLA Policy & Procedures

  • All references to employee leave in Company policies, employee handbooks, etc. must be amended to reflect these expansions of the FMLA.
  • When an employee requests leave, it is the Employer’s responsibility to designate the leave as FMLA leave. This may be done via a letter to the employee or through the use of the Department of Labor’s Designation Notice Form. Leave may not be counted toward 12 weeks if the Employer fails to designate the leave as FMLA.
  • Many companies are still using pre-2009 DOL forms for FMLA leave. The new regulations require Employers (and employees) to use new FMLA forms.

New Forms

  • Employers must use the proper and current FMLA designation form if they are going to count an employee’s leave as FMLA leave (or require an employee to expend his/her paid leave during the FMLA coverage).
  • Employers seeking medical certification from an employee’s health care provider must use the proper form. This form requires the health care provider to identify “essential duties” the employee cannot perform.
  • Similarly, Employers may also require a health care provider to confirm in a fitness-for-duty certification that the employee can perform all essential job functions upon his/her return to work. Updating job descriptions will help promote an efficient and accurate certification process.

FMLA leave year

The FMLA allows Employers to define the 12-month FMLA year in a number of different ways, such as a calendar year, a look-forward period (from the time the employee first takes leave), or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave. The rolling 12-month period typically is the best choice for Employers, since it avoids stacking 12-week FMLA periods back-to-back.

Bonuses

As companies set and review new goals for 2011, keep in mind that the new FMLA regulations allow Employers to deny such bonuses as “perfect attendance” awards to employees who take FMLA leave.

Releases

Employees may now release their past FMLA claims. However, many Employers are not including the requisite language in severance and settlement agreements. Employer model agreements should be properly updated to ensure that the language on FMLA claim releases is sufficient.

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