Just last week President Bush signed into law the National Defense Authorization Act which added provisions to the Family Medical Leave Act (FMLA) allowing for two new circumstances in which employees may take leave. Prior to the recent amendment, FMLA granted employees temporary (up to 12 weeks in a one year period) unpaid leave for the following qualifying events: the birth of a child; the placement of a child with the employee for adoption or foster care; the serious health condition of a spouse, daughter, son or parent; or the employee’s own serious health condition that renders the employee unable to work.

The new FMLA amendments as prescribed by the National Defense Authorization Act add the following leave entitlements for eligible employees: (1) up to 12 weeks of unpaid leave in a one year period for an “exigency” related to activity duty service by the employee’s immediate family member; and (2) up to 26 weeks during the employee’s employment for the care of a spouse, son, daughter, parent or next of kin who is a member of the armed forces and is undergoing medical treatment or is medically unfit to perform military duties due to an injury or illness incurred while on active duty.

With this amendment now in effect, are your current policies and practices in compliance? Below are employer requirements, and rights, as they relate to current FMLA regulations:

1. Grant leave when required. Employers operating with 50 or more employees within a 75 mile radius must grant an employee FMLA leave if the employee has worked for the employer for at least 12 months (which need not be continuous) and 1,250 hours within the past year. And of course, the employee may only be granted FMLA leave under certain prescribed circumstances, which are listed above.
2. Require notice. When possible, employees requesting leave must provide 30 days notice of their need for FMLA leave. When leave is not foreseeable, employees are to provide as much notice as is practical. If an employee fails to provide the required 30-days’ notice to the employer of intent to take leave when there is no reasonable excuse for the delay, the employer is allowed to postpone the start of leave for at least 30 days from the date the employee provides notice. An employee’s absence during this 30-day waiting period may be deemed as unexcused and the employer may take action against the employee for such absences consistent with the employer’s established policies on attendance.
3. Request medical certification. FMLA does not require that employers demand medical certification from employees. However, if you do request medical certification, you must provide the employee with written notice of the requirement. Just remember, if you request medical certification, you must do so consistently, not on a case-by-case basis. Additionally, the employer must allow the employee at least 15 calendar days to submit the medical certification following request. An employee’s failure or refusal to provide the certification if it is requested is a valid reason to deny leave.
4. Reasonably interpret the law. Especially with recent changes to the Act, employers must do their best to reasonably interpret the law. For example, employees are now entitled to take leave for the “exigency” related to activity duty service by the employee’s immediate family member; however, a “qualifying exigency” has not yet been defined. Employers should do their best to reasonably interpret the term.
5. Offer intermittent or reduced leave. Intermittent leave allows employees to take a day off of work here and there while returning to work in between. For example, an employee who needs to take his mother for radiation treatment every Friday for 10 weeks would require intermittent leave of 10 days across a 10 week period. Reduced leave allows an employee to take a part of a day off; the smallest interval of time allowed for reduced leave is the smallest interval of time the employer uses in its payroll system to account for absences or leave. Intermittent or reduced leave is not permitted for the adoption, foster care, or birth of a child, unless the employer and the employee agree to such an arrangement.
6. Request a return to work authorization. Employers may require that employees who take regular leave (but not intermittent leave) due to their own serious health condition not return to work until they provide medical certification that they can resume their essential job functions with or without reasonable accommodation. If accommodation is necessary, the fitness-for-duty request should ask the healthcare provider to specify the needed accommodation. If you do require this certification, it must be applied uniformly to all employees returning to work from a leave due to their own serious health condition.
7. Restore the employee to the same job upon return. Employees are entitled to be restored to the same (or similar) position held prior to taking leave. Similar positions must allow for the same pay, status and benefits awarded to the employee in their previous position. In addition, while on leave, employers must maintain the employee’s group health insurance coverage.
8. Create or update an FMLA policy. Employers subject to the FMLA requirements should have a written policy regarding their compliance with the Act. The policy should address qualifying circumstances in which leave will be granted, the requirements for medical certification, and other factors the employer would like to include, such as the use of paid time off (PTO) as part of FMLA leave. Best practice recommends employers require the use of PTO as part of FMLA leave in order to ensure employees returning from extended leave won’t come back for a short period of time just to use their accrued PTO. Consistent with the recent amendments to the Act, you will want to ensure that if you have a written FMLA policy that you update it to reflect the change in law. The two new leave circumstances must be addressed within your revised FMLA policy. To download a sample up-to-date policy on FMLA, click here.
9. Retain FMLA records. The FMLA requires employers to retain the following records for a 3 year period: a record of dates FMLA leave is taken; the hours of FMLA leave taken if in increments of less than one full day; copies of all FMLA notices; records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave; and FMLA-related medical records and documents pertaining to medical certifications, re-certifications, or medical histories of employees or employees’ family members, created for the purposes of FMLA.
10. Comply with state and federal provisions. Many states have their own version of family and medical leave (FML) laws. Although some state FML laws mirror the federal requirements, others provide for different provisions and/or cover employers who may not be subject to the federal Family and Medical Leave Act. Employers must comply with their state-specific provisions when state law provides for greater employee leave rights. For your specific state requirements, visit the Leave of Absence section of HR411’s State & Federal Laws.

Understanding your requirements as they pertain to the FMLA or your state-specific family and medical leave laws is essential for ensuring legal compliance. In addition to the basic provisions of the Act, employers are now required to offer leave, under certain circumstances, for families of military personnel. The amendments to the Act take effect immediately and employers must be sure their policies and practices appropriately reflect the new provisions.