MANAGEMENT MOXIE Nimble News

HOW WILL THE NEW FMLA
AFFECT MY BUSINESS?

Don’t look now, but a revised Family and Medical Leave Act (FMLA) is standing right behind you!

The new Act goes into effect on January 15, 2009. The revised FMLA contains significant changes for all employers subject to its application.

THE CHANGES

The revised FMLA includes the following "new" provisions:
  • As of January 28, 2008, the FMLA was amended to provide 26 weeks of protected leave (in a 12 month period) to a spouse, child, parent or "next-of-kin" caring for a military person who suffered a serious injury or illness in the line of duty on active duty. This so-called "military caregiver" provision is carried over to the new FMLA.
  • As of January 16, 2009, an eligible employee may take protected leave to address a "qualified exigency," provided the employee’s spouse, son, daughter or parent is on active duty, knows of an impending call to active duty or has just returned from active duty. However, this change does not apply to family of career military personnel. The change only applies to family of Reservists, National Guard members or retired military personnel. There are eight "qualified exigencies" defined in Section 825.126 of the Act.
  • Employees will have the right to settle their FMLA claims directly with their employer without the need for approval by a court or the Department of Labor.
  • If an employer allows an employee’s health insurance to lapse because the employee failed to make payments while on FMLA leave, the employer must reinstate that insurance when the employee returns to work.
  • An employee voluntarily working "light duty" does not diminish his/her FMLA leave entitlement, and that employee’s right to job restoration is unaffected by the light duty.
  • An employee must make a "reasonable effort" to schedule FMLA leave for medical treatment so as not to unduly disrupt the employer’s operations.
  • Employer’s may speak directly to an employee’s healthcare provider to clarified and/or authenticate a medical certification.
  • The notice requirements have changed. An employer may be held liable to an employee who suffers harm because the employer failed to follow the notification rules. New forms are available on the DOL website. We recommend that you carefully read the new notice requirements, and familiarize yourself with and use the new notice forms.
THE CLARIFICATIONS

The revised FMLA seeks to make the following clarifications of the prior version of the Act:
  • Previously, it was unclear whether an employee who had completed the 1,250 hours of work requirement, but not the 12 months of total service requirement, was eligible for FMLA. The new FMLA makes clear that an employee must meet both the hours and months requirement to qualify.
  • A "serious health condition" does not include a cold, the flu or other such illness, unless the illness involves incapacity of more than three consecutive calendar days and involves "treatment" as defined in Section 825.115.
  • To qualify for a "chronic serious health condition" under the new FMLA, the employee must visit his/her healthcare provider at least twice per calendar year.
  • An employee seeking FMLA leave to care for a qualified family member does not need to prove that he/she is the only person available to care for the family member.
  • While an employee need not be employed for 12 consecutive months to qualify for FMLA leave, employment prior to a continuous break in service of seven years or more need not be counted when calculating the months of employment needed to qualify.
  • Absent unusual circumstances, an employee must adhere to the employer’s normal and customary call-in procedures to qualify for FMLA protections.
  • The term "substitution" in Section 825.207 means that the unpaid FMLA leave runs concurrent with the paid provided by the employer.
FINAL THOUGHT
The new FMLA is lengthy and complex. We have not exhausted the discussion of the revisions implemented by the new FMLA. After reading the Act, you may have questions that are not covered by this brief summary. We welcome you to contact us with any such questions. You can reach us at 508.548.4888 or info@foleylawpractice.com



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