Summary of Federal Laws

 

Employment

 

Equal Employment Opportunity

 

Family and Medical Leave Act of 1993 (FMLA), as amended by the 2008 National Defense Authorization Act 

29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825.100 et seq
26 CFR 1.125-3 Effect of the FMLA on the operation of cafeteria plans

 

  Q and A on FMLA

 

The Law : Provides qualified employees with up to 12 weeks of unpaid leave in any 12-month period for the following:

 

·         the birth of a child and its care during the first year;

 

·         the adoption of a child or placement in the employee's home of a foster child;

 

·         the care of the employee's spouse, child or parent with a serious health condition; or

 

·         the serious health condition of the employee.

 

Paid leave may be substituted for unpaid leave. See 29 C.F.R. § 825.207 for specifics.

 

FMLA Proposed Rules; 73 Fed. Reg. 7875 (Feb. 11, 2008)

This proposed rule contains a number of technical changes to the FMLA regulations, including clarification of the rules for substituting paid leave for unpaid leave. See the Jackson Lewis article titled Much Anticipated Proposed Revisions to FMLA Regulations Released (Feb. 11, 2008) and also The Department of Labor web page on the proposed changes, which includes a Fact Sheet and FAQ. Comments can be submitted online until midnight April 11, 2008. Winston Strawn also has posted a February 2008 update that highlights the proposed changes.

FMLA as amended by the 2008 National Defense Authorization Act

As amended by Congress in 2007 and signed by the President on January 28th, the FMLA will now allow up to six months leave for family members (including next of kin or nearest blood relative) caring for military veterans injured while on active duty, and up to 12 weeks of leave because of any "qualifying exigency" to family members of service men/women called to active duty. See the Jackson Lewis article titled FMLA Amendments Extend to Families of Servicemembers, January 29, 2008.  This article incudes a sample Service Member FMLA Policy addendum, which can be used to amend FMLA policies to conform to the new law once it is signed by the President. See also the DOL web page on the new law. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, employers are to act in good faith in providing leave under the new legislation. See the DOL poster on Military Family Leave that can be used in addition to the standard FMLA postser.

 

Posting and Other Notices : See 29 C.F.R. § 825.208, 29 C.F.R. § 825.300 and 301. Employers must post notices detailing provisions of the law and incorporate the information into employee handbooks. Employers must advise employees which of four systems will be used to count leave: the calendar year; any fixed 12-month leave year (e.g., a fiscal year or a year starting on employee’s anniversary date); the 12-month period measured forward from the date any employee’s FMLA leave first begins; or a rolling 12-month period measured backward from the date an employee uses any FMLA leave. Sixty days notice must be given before a new system can be implemented. See 29 C.F.R. § 825.200. Notice must be given of where to file a complaint of violations of the FMLA. Notice must be given detailing the expectations and obligations of the employee and explaining the consequences of failing to meet these expectations. FMLA notice must be given to the employee at the beginning of each FMLA leave. This must be done within two business days of the employer obtaining the knowledge that the leave is being taken for an FMLA required reason. Oral notice must be confirmed in writing. This notice must include, where appropriate:

 

·         that the leave will be counted against the employee's annual leave entitlement;

 

·         any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;

 

·         the employee's right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitutions;

 

·         any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis;

 

·         any requirement for the employee to present a fitness-for-duty certificate to be restored to employment;

 

·         the employee's status as a key employee and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial;

 

·         the employee's right to restoration to the same or an equivalent job upon return from leave; and

 

·         the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.

 

Recordkeeping: Records must be kept for three years. Confidentiality provisions apply, and medical records must be kept in separate files from the usual personnel files. Items required to be kept by 29 C.F.R. § 825.500.

 

·         Basic payroll and identifying employee data, including name, address, occupation, rate or basis of pay and terms of compensation; daily and weekly hours worked per payroll period; additions to or deductions from wages; and total compensation paid.

 

·         Dates FMLA leave is taken. Leave taken by an employee must be designated as FMLA leave or non-FMLA leave. Leave designated as FMLA leave for this purpose may not include leave required under state law or an employer plan which is not also covered by FMLA. If leave is taken in increments of less than a full day, the hours of the leave must be recorded.

 

·         Copies of employee notices of leave furnished to the employer under the FMLA, and copies of all general and specific written notices given to employees as required by the FMLA.

 

·         Any documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave.

 

·         Premium payments of employee benefits.

 

·         Records of any dispute regarding designation of leave as FMLA leave. 

 

Confidentiality provisions hold unless: (1) a supervisor must be informed of necessary work restrictions, (2) confidential information is necessary for emergency treatment of an employee, (3) or government officials request information in order to check or enforce FMLA compliance.

 

Notice: FMLA Regulations: A Report on the Department of Labor's Request for Information, 72 Fed. Reg. 35550 (June 28, 2007)
The Employment Standards Administration’s Wage and Hour Division issued a Request for Information (RFI) on December 1, 2006. The RFI asked the public to comment on their experiences with, and observations of, the Department’s administration of the FMLA and the effectiveness of the regulations.
This is an unusual kind of step, and the hope is that comments provided by the public (over 15,000) will be the genesis for a discussion. No proposed regulatory changes are on the table at this time. See also the DOL web page on this issue.

 

EEOC Fact Sheet on FMLA, Americans with Disabilities Act, and Title VII

 

Relevant State Laws : Employers’ policies must conform to both federal and local family and medical leave laws. An employer must provide leave under whichever statutory provision provides the greater rights to employees. See 29 C.F.R. § 825.702.

 

Sample Forms and Useful Web Sites : Sample forms to be used by employers and employees in complying with this law, as well as links to other useful Web sites, can be found at the CUA Office of General Counsel page on Family and Medical Leave. 

 

  Selected Case Law Under FMLA

  Q and A on FMLA

 

 

 

Resources

 

updated 5/31/05 to add Saroli case

updated 6/28/05 to add occasions necessitating release of FMLA record

updated 8/23/05 to add Taylor case

links updated 1/31/06 pth

updated to add 72 Fed. Reg. 35550 and create links for cases and Q and A
updated 8/12/07 to add link to NACUA resource page

Links updated 10/16/07 - RAB
updated 12/28/07 to add amendment to FMLA (MLO)
updated 1/30/08 to add more on FMLA amendment
updated 2-12-08 to add updated FMLA rules