President Bush recently signed into law the National Defense Authorization
Act for Fiscal Year 2008. As part of the defense law, the FMLA
was amended to include leave for military family members, effective
Jan. 28, 2008.
The U.S. Department of Labor has issued a temporary notice titled "Notice
Military Family Leave." This is meant to be an informational
notice only; this is not the FINAL version of the revised FMLA notice.
It is not required to be posted. Download
the temporary notice now.
When the regulations are finalized, the FMLA notice printed on our Federal
Labor Law Poster will be revised. We estimate that the final version
will be released in June.
Meet
current state and federal posting requirements with affordable, full-color
labor law posters and kits. Add the update service
and be prepared for the new FMLA expansion!
April 18, 2008 - National coalition seeks clarification
of FMLA regulations
A coalition of employers and other organizations want questions resolved
as improvements are made to the Family and Medical Leave Act (FMLA). What
constitutes a serious health condition? How can an employer administer
unscheduled leave in a way that’s fair to all employees?
The Society for Human Resource Management (SHRM), the world’s largest
association devoted to human resource management, leads a coalition that
has just submitted lengthy comments to the Department of Labor, which is
proposing regulatory revisions to the 15-year-old law. More than 100 associations
and organizations co-signed the comprehensive comments submitted by the
National Coalition to Protect Family Leave (NCPFL). The group is spearheading
an effort to clarify the regulations and improve FMLA administration for
both employers and employees.
February 11, 2008 - DOL
seeks public comment on final regulations regarding military family leave
Although not included in the actual proposed changes to FMLA regulations,
the DOL is also seeking public comment on issues to be addressed in final
regulations regarding military family leave. The military provisions
stem from the National Defense Authorization Act for FY 2008, which amended
the FMLA to provide leave to eligible employees of covered employers
to care for injured servicemembers and because of any qualifying exigency
arising out of the fact that a covered family member is on active duty
or has been notified of an impending call to active duty status in support
of a contingency operation.
The provisions of this amendment providing FMLA leave to care for a
covered servicemember became effective on January 28, 2008, when the
law was enacted. The provisions of this amendment providing for FMLA
leave due to a qualifying exigency arising out of a covered family member's
active duty (or call to active duty) status are not effective until the
Secretary of Labor issues regulations defining "qualifying exigencies." The
preamble to the proposed regulations provides some insight as to what
qualifying exigencies may include, but the DOL turns to the stakeholders
for their comments.
Because of the new military family leave provisions, a revised poster
will be needed. Currently, there is a non-mandatory poster with information
on the new provisions. Employers may use this non-mandatory poster in
the interim until a new poster is developed.
The DOL indicated a sense of urgency to issue regulations governing
the military family leave provisions.
February 11, 2008 -
DOL publishes proposed changes to FMLA
On February 11, the Department of Labor (DOL) published proposed changes
to the 15-year-old Family and Medical Leave Act (FMLA). The changes are
based on the DOL's experience administering the law, two previous DOL
studies of the FMLA in 1996 and 2001, several U.S. Supreme Court and
lower court rulings, and the public comments received in response to
a Request for Information ("RFI") published in the Federal
Register in December 2006 requesting information about experiences with
the FMLA and comments on the effectiveness of these regulations.
In part, the proposed regulations respond to legal challenges, such as
the penalties when an employer fails to designate leave (Ragsdale v. Wolverine
World Wide, Inc.), as well as cases involving the definition of a serious
health condition.
Some of the proposed changes include the following:
• If employers do not include FMLA general notice information
in their handbooks, they would be required to provide such notices
to their employees at least annually.
• Employees would be required to provide an explanation of the
need for leave, or risk having the leave denied. For intermittent leave,
calling in sick without providing more information would not be sufficient
notice.
• Upon a request for FMLA leave, employers would need to provide
an eligibility notice within five business days.
• After determining whether the leave qualifies for FMLA leave,
employers would be required to provide a designation notice within
five business days of making the determination. This would include
the number of hours, days, or weeks that would be counted against the
employee's leave entitlement. If this is not possible, then employers
must provide such information every 30 days.
• Employers may contact an employee's health care provider to
obtain clarification or authentication, but not additional medical
information. Such contact must comply with the HIPAA privacy rule.
If employees do not provide authorization allowing the employer to
clarify the certification with the health care provider, and the employee
does not provide for the clarification, leave may be denied.
Comments are being accepted until April 11, 2008.
February 4, 2008 - FMLA
leave law adds concept of serious injury or illness
According to the new FMLA leave expansion bill (HR 4986) recently signed
by the President, a serious injury or illness is more comprehensive and
defined. A serious injury or illness is one incurred by a servicemember
in the line of duty on active duty in the Armed Forces, including the
National Guard or Reserves, that may render the member medically unfit
to perform the duties of his or her office, grade, rank, or rating. For
outpatient status, the servicemember is to be assigned to a military
medical treatment facility as an outpatient, or to a unit established
for the purpose of providing command and control of servicemembers receiving
medical care as outpatients.
Eligible employees with family members in the military who meet the
above definition are entitled to a total of up to 26 weeks of leave to
care for the injured or ill servicemember. These provisions became effective
upon the President’s signature on January 28, 2008.
January 31, 2008 - Definition
of FMLA military families explained
The National Defense Authorization Act, recently signed by the President,
includes provisions that expand the reasons for leave and explain who
is entitled to leave under the Family and Medical Leave Act (FMLA). Under
the new provisions that are currently in effect, eligible employees who
are the spouse, son, daughter, parent, or next of kin of a covered servicemember
are entitled to a total of up to 26 weeks of leave to care for the injured
or ill servicemember.
The law introduced an additional group of employee
family members as "next of kin," which includes the
nearest blood relative of an individual. This goes beyond the original
definition of an immediate family member and allows a broader definition
of "family" for
which eligible employees may take advantage of the law.
For example, if an employee has a sibling who is injured in the line
of duty, the original FMLA provisions would not cover the situation.
However, under the expansion, the employee would be able to take up to
26 weeks to care for his or her sibling. These provisions became effective
upon the President’s signature on January 28, 2008.
January 30, 2008 - FMLA:
Effective dates for military leave expansion bill
President Bush recently signed into law H.R. 4986, the National Defense
Authorization Act for FY 2008 (NDAA). It amends the Family and Medical
Leave Act of 1993 (FMLA) to permit a "spouse, son, daughter, parent,
or next of kin" to take up to 26 workweeks of leave to care
for a "member of the Armed Forces, including a member of the National
Guard or Reserves, who is undergoing medical treatment, recuperation,
or therapy, is otherwise in outpatient status, or is otherwise on the
temporary disability retired list, for a serious injury or illness."
The provisions in the NDAA providing this leave are effective as of
Jan. 28, 2008. The Department of Labor is working quickly to prepare
more comprehensive guidance regarding rights and responsibilities under
this new legislation. In the interim, the Wage and Hours Division will
require employers to act in good faith in providing leave under the new
legislation. Because the NDAA amends the FMLA, FMLA-type procedures should
be used as may be appropriate (for example, procedures regarding substitution
of paid leave and notice).
The NDAA also permits an employee to take FMLA leave for "any
qualifying exigency arising out of the fact that the spouse, or a son,
daughter, or parent of the employee is on active duty (or has been notified
of an impending call or order to active duty) in the Armed Forces in
support of a contingency operation." By its express terms, this
provision of the NDAA is not effective until the Secretary of Labor issues
final regulations defining "any qualifying exigency." DOL
is expeditiously preparing such regulations. In the interim, DOL encourages
employers to provide this type of leave to qualifying employees.
January 29,
2008 - President
signs law expanding the Family and Medical Leave Act
Yesterday, the President signed HR 4986, a defense authorization bill,
which included leave provisions for military family members. The law
expands the Family and Medical Leave Act, and adds two new types of leave:
Up to 12 weeks of unpaid leave for eligible employees who are the
spouse, son, daughter, parent, or next of kin of a covered servicemember
for any qualifying exigency (this term is to be defined by regulations).
Up to 26 weeks of unpaid leave for eligible employees who are the
spouse, son, daughter, parent or next of kin of a covered servicemember
who has incurred a serious injury or illness in the line of duty. For
the 26 weeks, servicemembers are those in the Armed Forces, including
the National Guard or Reserves who are undergoing medical treatment,
recuperation, or therapy. The care may be through outpatient status
or the individual is otherwise on the temporary disability list because
of the condition. The serious health condition must render the individual
as medically unfit to perform the duties of the office, grade, rank,
or rating.
The law introduces the definition of "next of kin" to be the nearest
blood relative of an individual. This definition goes beyond the original
definition of immediate family member. If the need for leave under these
new provisions is foreseeable, employees must provide notice to the employer
as soon as reasonable and practicable.
January 23, 2008 - Defense
bill extends FMLA to servicemembers' families
Congress has passed the Defense Authorization Bill (HR 1585) with
a House Report from early December that includes a provision to expand
FMLA for families of servicemembers. Under the provision, eligible employees
who are the spouse, son, daughter, parent, or next of kin of a covered
servicemember — who is on active duty or called to active duty — is
entitled to up 12 weeks of FMLA. In addition, eligible employees will
be entitled to up to 26 workweeks of leave during a 12-month period to
care for a servicemember who is a family member and who has a serious
injury or illness.
Servicemembers are those in the Armed Forces, including the National
Guard or Reserves who are:
Undergoing medical treatment;
Recuperation; or
Therapy.
This may be through outpatient status or otherwise on the temporary
disability retired list because of a serious injury or illness. The bill
introduces the definition of "next of kin" to be the nearest blood relative
of an individual. This may go beyond the current definition of immediate
family member. The definition of a "serious health condition" for servicemembers
is also included, and refers to the individual being medically unfit
to perform the duties of the office, grade, rank, or rating.
Like the current provisions, employees would be able to elect, or employers
may require substitution of accrued paid leave. Notice provisions for
foreseeable leave are also included in the bill. The notice must be reasonable
and practicable. Employers would be able to require certification for
employees taking leave, and the details of this requirement would be
spelled out in regulations. The bill now goes to the White House, where
the President is expected to sign it.
FMLA: New defense bill adds provisions for
military family members
As promised, Congress got busy reworking a defense bill (HR 5185)
President Bush vetoed late last year upon their return from break. Under
the original bill, eligible employees would be entitled to up to 12 weeks
of FMLA. These are employees who are the spouse, son, daughter, parent,
or next of kin of a covered servicemember who is on active duty or called
to active duty. In addition, eligible employees would be entitled to
up to 26 workweeks of leave during a 12-month period to care for a servicemember
who is a family member and who received a serious injury or illness in
the line of duty.
A new bill (HR 4986) includes those same provisions, and has already
passed the House and the Senate. It has been speculated that the President
may sign it into law by the end of the month.