Updates

Here are summaries of important legal or procedural changes that affect the latest edition of this product. If you want to check on the accuracy of any other information in the book, please follow the legal research instructions in the book or in Nolo's research manual, Legal Research: How to Find and Understand the Law.

• Correction: Employers With 50 Employees Within A 75 Mile Radius Are Subject to the FMLA
• New FMLA Poster for Military Family Leave
• Proposed FMLA Regulations Issued
• FMLA Expands and New Regulations Expected
• Oregon Family and Medical Leave Law to Change for 2008
• Washington State Adopts Paid Family Leave Program
• Recent Developments in Family and Medical Leave

Correction: Employers With 50 Employees Within A 75 Mile Radius Are Subject to the FMLA

Employers with 50 or more employees within a 75 mile radius are subject to The Family Medical Leave Act (FMLA).

In The Essential Guide to Family & Medical Leave, we got our numbers scrambled in a couple of places, indicating that employers with 75 or more employees within a 50 mile radius are subject to the FMLA. This typo appears on pages 5, 22, and 37; all other references state the rule correctly.

We apologize for any confusion this might have caused.

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New FMLA Poster for Military Family Leave

The Department of Labor has issued a "poster insert" for employers who are subject to the Family and Medical Leave Act (FMLA). This insert addresses the new rights created by the defense authorization law recently signed by President Bush. That law allows eligible employees to use their 12 weeks of FMLA leave for any "qualifying exigency" arising out of a family member's active duty. It also allows employees to take up to 26 weeks of leave in a single 12-month period to care for a family member who sustains a serious illness or injury while on active duty. (For more information on these new provisions, see Family and Medical Leave for Military Family Members.)

All covered employers are required to post information on the FMLA, and the Department of Labor provides a poster that can be used to meet this requirement. The Department of Labor recently released a "poster insert," which employers can hang along with the regular FMLA poster to notify employees of their new rights to military family leave. You can find the new poster insert here.

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Proposed FMLA Regulations Issued

The Department of Labor (DOL) issued proposed changes to the FMLA regulations on February 11, 2008. There will be a two-month public comment period, during which individuals and groups can tell the DOL, in writing, what they think of the proposed regulations. Once the comment period ends on April 11, the DOL will review the comments and release final regulations.

The proposed regulations don't go as far as some employer groups hoped -- and some employee advocates feared. For example, the proposed rules make only minor changes to the definition of a "serious health condition," and continue to allow employees to take intermittent leave in the smallest increments tracked by the employer's timekeeping system.

The most significant changes appear to be to the notice and medical certification portions of the regulations.

Notice

Here are some of the changes proposed to the FMLA's notice requirements:

• Employers now have to provide more information when employees request leave and when an employer designates time off as FMLA leave; the time limit for providing this information has been extended from two days to five.

• Employees still don’t have to say that they are requesting “FMLA leave,” but they can’t just call in “sick.” Employees must indicate that they have a condition that renders them unable to perform their job functions (or renders a family member unable to perform daily activities); how long they expect to be out; and whether the employee or a family member is getting care from a health care provider.

• Employees must comply with the employer’s usual notice and procedure requirements for taking time off (for example, calling in) absent unusual circumstances. If the employee could have followed the employer’s rules but didn’t, FMLA leave can be delayed or denied.

• Employees still have to give 30-days’ notice of foreseeable leave, but now an employee who doesn’t give this much notice must explain why.

Medical Certifications

Here are some of the proposed modifications to the medical certification process, by which the employee presents written proof that the employee or a family member has a serious health condition.

• Employers would be allowed to contact health care providers directly to clarify and authenticate the certification.

• If an employer finds the certification to be incomplete or insufficient, the employer must tell the employee, in writing, what additional information is necessary and give the employee at least seven days to fix it.

• Although the proposed rules say that employees can’t be required to waive their right to privacy in their medical records, they also say that FMLA leave can be denied if the certification is inadequate (after the employee has had an opportunity to fix it) and the employer can’t straighten things out by talking to the health care provider.

What's Next

The proposed regulations don't include any rules on the new military family leave provisions of the FMLA. Instead, the DOL raised a number of questions about how these new rights should be implemented and asked for public comment.

All this means that the DOL will probably have plenty of reading to do after April 11, when the comment period ends. Once final regulations are drafted, Congress will have the chance to weigh in on -- and potentially, disapprove of -- the final regulations. In fact, a couple of Senators have already indicated that they might hold hearings on the new rules. Whether and when the regulations will actually be finalized, given that we are in a Congressional and Presidential election year, is anyone's guess.

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FMLA Expands and New Regulations Expected

The FMLA has been amended for the first time in its 15-year history. On January 28, 2008, President Bush signed a military reauthorization bill that included two new FMLA provisions:

• Employees with a family member who is called to active duty may take FMLA leave for "any qualifying exigency" arising out of the family member's military service.
• Employees may take up to 26 weeks off to care for a family member who suffers a serious injury or illness while on military duty; this is a one-time only right.

For more information on these new provisions, including when they go into effect and what you should be doing right now, see Family and Medical Leave for Military Family Members.

There may be even more changes coming soon: The Department of Labor has, at long last, prepared interim FMLA regulations that address a few hotly contested issues, such as medical certifications and notice requirements. These regulations have not been made public yet. The regulations have been sent to the Office of Management and Budget, which has up to 90 days to review them before they are published in the Federal Register. Once the regulations are published, there will be a public comment period. After the DOL has read the comments and decided whether to change the interim regulations in response, it will publish final, binding regulations.

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Oregon Family and Medical Leave Law to Change for 2008

The Oregon Legislature has made three significant changes to its family and medical leave law, which will take effect on January 1, 2008. Here's what to expect for the new year:

• Grandparents and grandchildren are covered family members. Employees can take time off to care for a grandparent or grandchild who has a serious health condition.
• Paid sick leave can be used for any family or medical leave. Previously, employees could use paid sick leave only if the reason for taking leave was covered by the employer's sick leave policy. Now, sick leave can be used for any reason covered by Oregon's family and medical leave law.
• Workers' comp leave doesn't count as medical leave. An employee who has a workers' comp injury often also has a serious health condition, as defined by federal and Oregon law. However, employers can no longer count time spent on workers' comp leave against the employee's 12 weeks of state medical leave. If the employee turns down an appropriate light-duty position and continues to take time off, however, that additional time counts against the employee's state leave entitlement.

Oregon's law was already more generous to employees than the federal Family and Medical Leave Act (FMLA) in a number of ways, and these recent changes simply continue that trend. Because of these differences between federal and state law, Oregon employers have to carefully track employee leave to make sure that they provide all of the time off that's legally required -- and to make sure that they count all applicable leave against the appropriate entitlement, whether it's protected by federal law, state law, or both.

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Washington State Adopts Paid Family Leave Program

In May 2007, Washington became the second state in the nation (after California) to pass a paid family leave law. Effective October 1, 2009, the law will allow new parents to receive partial compensation for time they take off to spend with their new child.

Here are a few key provisions of the new law:

• Employees are eligible for benefits if they worked at least 680 hours during the prior year (or the year that ended three months before they took leave).
• Eligible employees can receive benefits for up to five weeks.
• The weekly benefit will be $250 per week for employees who work at least 35 hours per week; employees who work fewer hours will receive a prorated amount.
• Employees may receive benefits only for leave taken to care for a newborn or newly adopted child; other types of family and medical leave (for example, to care for a seriously ill family member or recuperate from a serious health condition) are not covered.

The law also creates a task force to study funding and administrative options for the program. The task force is required to report its findings and recommendations to the state legislature on January 1, 2008.

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Recent Developments in Family and Medical Leave

The Family and Medical Leave Act (FMLA) -- the federal law that gives certain employees the right to take up to 12 weeks off per year to care for a new child, to care for a seriously ill family member, or to recover from their own serious health condition -- has been controversial since the day it was signed by President Clinton. Advocates for employers have argued that the law is too easily abused and imposes difficult compliance obligations. On the other hand, advocates for employees have said that the law doesn’t go far enough in helping employees balance the demands of work and family, particularly because it requires only unpaid leave.

This debate has only gotten more heated in recent days, as Congress, federal agencies, and advocacy groups have all weighed in with various proposals to limit or extend the FMLA. It’s impossible to predict whether or how the law will change once the dust settles, but one thing’s for sure: This is a key area for HR professionals, business owners, and employees to keep an eye on in 2007. Here are some of the most interesting developments currently afoot.

The Department of Labor’s Report on the FMLA Regulations

In December 2006, the Department of Labor (DOL) -- the federal agency that interprets and enforces the FMLA -- issued a “Request for Information,” asking the public to comment on their experiences with the law. Before this Request was issued, the DOL had said that it was planning to issue new FMLA regulations. In fact, the DOL has said so for years, ever since the U.S. Supreme Court struck down one of the regulations in 2002. Rather than simply issuing new proposed regulations and asking for public comment on those, however, the DOL asked more generally for information on how the FMLA was working and whether any regulatory changes were necessary.

And its request was answered: The agency received more than 15,000 comments on the FMLA. In a June 2007 report summarizing the comments, the DOL noted that these comments generally broke down into three categories:

• thankful letters from employees who had used the law
• requests to expand the law’s coverage (for example, to provide more time off, paid leave, or leave for additional reasons), and
• frustration from employers about problems with attendance and staffing relating to employee use of unscheduled leave for chronic health problems.

The DOL has not yet issued any proposed changes to the regulations, but advocacy groups have pressed for further action. Stay tuned.

Proposed Legislation

Congress has been very busy in this area, as well. There are currently a number of bills pending on family and medical leave, including:

• the Family Leave Insurance Act, which would provide partial wage replacement -- paid out of a federal insurance program funded by the government and payroll taxes on employees and employers -- for up to eight weeks of an employee’s FMLA leave
• the Healthy Families Act, which would require covered employers to give employees up to seven paid sick days per year, and
• the Support for Injured Servicemembers Act, passed by the Senate in early August as part of its reauthorization of the State Children’s Health Insurance Program, which would allow employees to extend their FMLA leave up to six months to care for family members who were injured in military service.

Discrimination Against Caregivers: The EEOC Weighs In

The Equal Employment Opportunity Commission (EEOC) -- the federal agency that enforces laws prohibiting discrimination in employment, including Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act -- recently issued enforcement guidance on discrimination against employees who have caregiving responsibilities.

The EEOC does not enforce the FMLA, and none of the laws for which the EEOC is responsible expressly prohibit discrimination against caregivers. The EEOC was quick to point out that its guidance was not intended to create new rights for employees or a new type of lawsuit. Instead, the guidance highlights ways in which an employer’s decisions regarding employee-caregivers might discriminate based on a protected characteristic. For example, an employer who assumes that new mothers won’t be as dedicated to their jobs or that fathers don’t need to take time off to care for a child is relying on gender-based stereotypes.

What’s Next?

In the coming months, we may -- or many not -- see changes in the FMLA regulations, new laws that affect family and medical leave, and increased enforcement action targeting discrimination against caregivers. While we don’t know exactly what the future holds for family and medical leave, there’s no doubt that this will continue to be a hot topic in the employment law arena.

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