Proposed changes to the FMLA are now official and will go into effect January 16, 2009.
Here are some of the highlights of the changes:
- Military Family Leave — The new regs include amendments to the FMLA which give employees 26 weeks of leave a year to care for a family member injured during military service. Employees also get leave for a “qualifying exigency” related to a family member in the military — for example, short-notice deployments, military events, counseling, childcare and post-deployment activities.
- Light duty — The regs clarify that time an employee spends working “light duty” because of a serious illness is not to be tracked as FMLA leave.
- Waiver of rights — Employees can’t waive their right to sue for an FMLA violation. The courts haven’t agreed on whether that only refers to future FMLA claims, or if it also includes retroactive waivers, such as those found in severance agreements. Under the DOL’s proposal, the latter type of waiver will be allowed.
- Definition of “serious health condition” — To qualify for FMLA, an employee or family member must be incapacitated for more than three consecutive days and make at least two visits to a healthcare provider (or one visit plus continuing treatment). The proposed regs require those two visits to occur within 30 days of when the period of incapacity starts. Also, to get leave for a chronic condition, the employee or family member must make at least two doctor visits annually.
- Perfect attendance bonuses — Under the old regs, if an employee had perfect attendance other than qualified FMLA leave, the employer was required to pay him or her any applicable attendance bonus the company usual gives out. The new regs let companies withhold those bonuses — as long as employees who take FMLA aren’t treated more harshly than employees who take time off for other reasons.
- Notice from employees — According to some courts’ interpretation, the old regs let employees notify the company of the need for leave up to two days after they take off — even if they could’ve given advance notice. The new regs state that employees taking leave must follow the company’s usual process for reporting absences, if possible.
- Notice to employees — Right now, employers have to tell employees that time off will be counted as FMLA within two days of learning about the qualifying condition. Under the new regs, employers would have five days.
- Eligibility standards — Employees are eligible for leave if they’ve worked for the company for at least 12 months — even if the 12 months weren’t consecutive. The current rules don’t say how long employees can go back to add up periods of service. Under the proposed regs, employers won’t need to count any time that occurred before a break in service of more than seven years.
To read all 700 pages of the changes as they’ll appear in the Federal Register, click here for the official document.
