Just give it to me straight: What’s required under the FMLA?

It was about this time last year we were on the edge of seats waiting for the highly publicized changes to the Family Medical Leave Act (FMLA) to be released. Early 2008 brought an amendment to the FMLA known as the National Defense Authorization Act which added two new circumstances in which employees are entitled to family medical leave. What does 2009 bring?The Department of Labor (DOL) has recently issued new regulations interpreting the FMLA, which are scheduled to take effect on January 16, 2009. These regulations are intended to improve to provide needed clarity for workers and employers regarding their rights and responsibilities under the Act.

So, what does this mean for employers? It means the Act isn’t as fuzzy, but it also means employers must strictly comply with its requirements. Let’s break down your requirements under the FMLA: the past, the present, and the future:

1. Create or update an FMLA policy. Employers subject to the FMLA requirements – those with 50 or more employees in a 75 mile radius - should have a written policy communicating their compliance with the Act. The policy should address qualifying circumstances in which leave will be granted, the company’s requirements for medical certification, and other FMLA practices the company follows, such as how the FMLA year is calculated and whether or not the use of paid time off (PTO) is required as part of FMLA leave. Consistent with the Act’s amendments and the final rules scheduled to take effect shortly, if you have a written FMLA policy be sure that you update it accordingly.
2. 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, an employee is only entitled to FMLA leave under certain prescribed circumstances, which include: the birth or adoption of a child; for the employee’s own serious health condition or the serious health condition of a family member; a qualifying “exigency” for a covered family member on active duty for short-notice deployment, military events, and post-deployment activities; and to care for 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.
3. Require notice. When possible, employees requesting leave must provide 30 days notice of their need for FMLA leave. If an employee fails to provide the required 30-days’ notice of their intention to take FMLA 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. When leave is not foreseeable, the Act previously permitted employees to notify their employers of their need to take FMLA leave up to two business days after an absence. The new rules, which take effect January 16^th, now require employees to follow the employer’s regular call-in procedures for reporting an absence, unless there are unusual circumstances preventing the employee from doing so.
4. Requiring medical certification. FMLA does not require that employers demand medical certification from employees. However, if you do request medical certification, you must provide employees with written notice of this requirement. Just remember, if you request medical certification, you must do so consistently, not on a case-by-case basis. An employee’s failure or refusal to provide the certification if it is requested is a valid reason to deny leave.
5. Ensure privacy. In order to protect employee health information, the final rules indicate that those contacting health care providers in order to obtain medical certifications must be either a human resource professional, leave administrator, or a management official. Under no circumstances may the individual be the employee’s direct supervisor. Those permitted to contact health care providers may not ask for additional information beyond what is required in the certification form.
6. Notify employees of their rights. When the final regulations take effect January 16th, employers will be required to provide employees with written notification of their rights and responsibilities under the Act. A general notice about FMLA - through a poster, a policy in the company’s employee handbook, or upon hire – is required. In addition, an eligibility notice along with a rights and responsibilities notice must be provided within 5 days of a leave request and a designation notice must be provided within 5 days of determining whether the leave is covered under FMLA.
7. Offer flexibility. 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.
8. Request a return to work authorization. Employers may require that employees who take leave due to their own serious health condition are not permitted to return to work until they provide medical certification that indicates their ability to resume their essential job functions with or without a 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.
9. Light duty. An employer may not require, but an employee with a serious health condition may voluntarily agree to perform “light duty” work to in order to accommodate his or her circumstances. Time spent performing light duty work does not count against an employee’s FMLA leave entitlement.
10. Job restoration. 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.
11. Retain FMLA records. The FMLA requires employers to retain the following records for a three 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.
12. State requirements. 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 the law, state or federal, that provides for greater employee leave rights. For your specific state requirements, visit the Leave of Absence section of our 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. The final rules take effect January 16, 2009 and employers must be sure their policies and practices appropriately reflect the new provisions.

Making Sense of Military Leave Laws

With an increasing number of workers in the uniformed services, employers need to be sure they are complying with all the requirements of military leave laws, including the Military Selective Service Act, the Veterans’ Reemployment Rights Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). In addition, more and more states have recently implemented their own military service laws which focus on family military leave and leave for spouses of those who are deployed, facing deployment, or are home from deployment. The federal government has even added an amendment to the Family and Medical Leave Act (FMLA) to allow for family military leave. With all these changes, it’s important for employers to understand the ins and outs of the law.Military service laws are designed to protect members of the armed services from discrimination with regards to hiring, retention, promotion, or any other benefit of employment. These laws cover all private employers as well as federal, state, and local govern­ments and protect the rights of veterans, reservists, National Guard members, and certain other members of the uniformed services. In addition to anti-discrimination provisions, these laws guarantee that military service personnel are reinstated to the same (or equivalent) position held prior to their leave with the level of pay, seniority, and benefits the employee would have received if not on leave.

Below are some specific guidelines for understanding, and complying with, employee military service laws:

1. Advance notice. Employers have the right to request advance notice of military service unless conditions make it impossible for the employee to provide notice. Additionally, when the employee submits their intention to take leave, an approximate return to work date can be requested; however, employers may not insist on knowing exactly when the employee will return to work.
2. Scheduling. Guards and reservists may not be denied promo­tions or other benefits because of their reserve obligation, nor can they be disciplined for not being able to accept overtime requests due to their reserve training or duty. Employers should make an effort to reschedule these workers, if pos­sible, to avoid conflicts between work and reserve or Guard train­ing.
3. Vacation time. Employers may not require employees to use vacation time for military training, but employees can use accrued vacation or other paid leave benefits if they wish. It’s important to also consider vacation entitlement when the employee returns to work. This issue has been subject to confusing interpreta­tions by the courts. Generally, if vaca­tion entitlement is based on seniority, then military service should be counted; however, if vacation entitlement is based on specific work requirements such as the number of hours worked per week, military service may not nec­es­sarily be counted.
4. Pay. Employers are not required to pay employees who are on military leave, unless other state or local laws require payment to employees that are out serving military obligations. Although not required to do so, some employers decide to pay employees that are out on short periods of military leave. Those that do often pay only the difference between the employee’s regular salary and military pay, if any.
5. Benefits continuation. The law requires employers to offer those on military leave and their dependents con­tin­uance in the group health plan for up to 18 months of service. They may be required to pay 102% of the full group rate; those serving 31 days or less pay only the amount they would have paid if still employed. With regards to pension benefits, the law requires employers to make up contributions to defined contribution plans that may have been missed while the employee was on leave.

6. Length of absence. Military service personnel out on leave for up to five years will still retain their employment rights. This amount of time may actually be longer for initial obligation periods, in certain training situations, or if the indi­vidual served during a war or other crisis.
7. Reemployment. Reemployment is required after “satisfactory completion” of service; this does not include dishonorable or “bad conduct” discharges. Employers can deny reinstatement to qualified service personnel only if they can show undue hardship (e.g., conditions have changed so as to make reemployment impossible or unreasonable). Individuals requesting to be reinstated must do so within a specified period after completing service: those who served more than 180 days must do so within 90 days; those who served for 31-180 days must reapply within 14 days following the end of their service; and those serving 30 days or less must report to work at the start of the next shift.
8. Status. Individuals returning after service of no more than 90 days must be given the job they would have had if they had been continuously employed. Individuals who serve 91 days or more must be given the job they would have had if continuously employed or one of like status and pay. In either case this could result in being placed in a higher or lower level position (or even on layoff) depending upon what has transpired in the workplace during the leave. In addition, the period of military service for returning service personnel will count as part of their total seniority within the company for such benefits as pension eligibility, FMLA, and vacation time. Simi­larly, company or department-wide increases, improvements in insurance or other benefits, and all the other rights or benefits that would prob­ably have been derived from continued employment, must be provided to these workers upon their return.

With more employees in the military, employers need to start thinking about the implications to their business. These employees are guaranteed job protection, benefits coverage, and status retention during military service and upon their return.

State-specific laws may vary from federal military service laws, so it’s important to understand your state’s provisions on the issue. Check out the Military Service section of our State & Federal Labor Laws for more information on your state requirements.