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Family and Medical Leave

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Family and Medical Leave Act of 1993 (FMLA), as amended by the 2008 National Defense Authorization Act and the NDAA of 2010

29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825.100 et seq

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.

The Family and Medical Leave Act; Final Rule, 78 Fed. Reg. 8834, Feb. 6, 2013. This Final Rule is effective March 8, 2013.

The Final Rule implements amendments made in 2010 to the Family Medical Leave Act expanding the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country. See the DOL website on this  final rule, which includes an FAQ and a summary of major provisions, as follows: 

  • Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins.
  • Creating a flexible definition for serious injury or illness of a covered veteran, that includes four alternatives only one of which must be met.
  • Permitting eligible employees to obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any health care provider as defined in the FMLA regulations, not only those affiliated with the DOD, VA, or TRICARE networks (as was permitted under the 2009 regulations).
  • Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
  • Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care.
  • Incorporating the statutory hours of service eligibility requirements for airline flight crew employees for FMLA leave.
  • Creating a unique method of calculation of leave for airline flight crew employees, and establishing that FMLA leave for intermittent or reduced schedule leave usage, taken by airline flight crew employees, must be accounted for using an increment no greater than one day.

Military caregiver leave for a veteran will not be available until the effective date of the Final Rule on March 8, 2013

January 14, 2013 DOL Wage and Hour Division Guidance: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. The age of a son or daughter at the onset of disability is not relevant to the determination of a parent’s eligibility for FMLA leave. The guidance further clarifies that care of a son or daughter over 18 years of age would be eligible for FMLA leave if the adult son or daughter has a disability under the ADA; is incapable of self-care due to the disability; has a “serious health condition” as defined by the FMLA; and is need of care due to that serious health condition.See the Reed Smith Jan. 24, 2013 Employment Law Watch on this guidance titled "U.S. Department of Labor Affirms Parents' Right to FMLA Leave to Care for Adult Children."

 

January 30th, 2012 Notice of Proposed Rulemaking.
This proposed rule would expand the military family leave provisions and incorporates a special eligibility provision for airline flight crew employees, as well as making some additional regulatory changes. See the DOL web page summary on same. 

DOL Administrator's Interpretation No. 2010-3June 22, 2010 Clarification of definition of son or daughter under Section 101(12) of the FMLA as it applies to an employee standing *in loco parentis* to a child. 

FMLA Final Rule, 73 Fed. Reg. 67933, November 17, 2008
Effective Jan. 16, 2009.The final regulations make many changes to the law. Some of the changes include new military family leave entitlements, new notice forms to be used; medical certification requirements, and more. Employers will need to review their policies and procedures to bring them into compliance with the new regulation. A helpful summary can be found in the Jackson Lewis Newsletter posted November 17, 2008 titled Long Awaited FMLA Regulations Released. See also the Department of Labor Fact Sheet on the Final Rule, and the DOL FMLA Final Rule Web Page. See also the Fulbright Jaworski Nov. 2008 Alert titled Final FMLA Regulations Issued and the Seyfarth Shaw 12/2/08 Summary of the Revised Regulations.

FMLA as amended by the 2010 National Defense Authorization Act
President Obama signed the NDAA on Oct. 28, 2009. Provisions of this law expand FMLA military benefits effective immediately. Forms that were finalized by DOL in January will need to be updated.

Qualified Exigency Leave is now available when a family member of an eligible employee who is in the regular armed forces (this was previously limited to members of the National guard or military reserves) is deployed to a foreign county. This leave is now available for National Guard, military reserves, or regular armed forces when called to active duty in a foreign country. In addition, an eligible employee may take up to 26 weeks of leave in a single twelve month period to care for a family member with a serious injury or illness that was incurred or aggravated in the line of duty while on active duty who is either in the military or who is a veteran for up to 5 years after he or she leaves military service, even if the injury did not manifest itself until the member became a veteran. See the Jackson Lewis article President Signs Expansion of FMLA Coverage for Military Families

FMLA as amended by the 2008 National Defense Authorization Act

As amended by Congress in 2007 and signed by the President on January 28th, 2008, 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 Family Leave that can be used in addition to the standard FMLA postser.

 Posting and Other Notices : See 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.

 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.

Cases on FMLA:

 

McFadden v. Ballard Spahr Andrews & Ingersoll, D.C. Cir. No. 08-7140 (June 29, 2010)

An employee who could no longer perform the essential duties of her job was dismissed. She sued on almost all available legal theories, and struck out except for the possiblity that the employer had discouraged her from taking FMLA leave. The theory of *FMLA interference* means that even if the employer ultimately grants all FMLA leave requested, an employer that discourages the taking of FMLA leave may be found liable for interference. No liability has yet been found, the case has been remanded for further proceedings.

Q and A on FMLA

 Resources


Gauer v. Gallaudet University, (D.D.C.)
February 26, 2013: Labor and Employment - Under District of Columbia law, a university professor's claims for both breach of contract, and for violation of the Family Medical Leave Act (FMLA) based upon the university's non-renewal of his contract in alleged retaliation for professor's taking time off to have spinal fusion surgery accrued when the university sent him a letter notifying him that it would not be renewing his contract, rather than on the beginning date of the semester he would have taught had the university renewed his contract. The letter constituted formal notice to the professor that his contract would not be renewed.

 

DOL publication titled Need Time? The Employees' Guide to the Family and Medical Leave Act June 2012 20 page resource for employees.

 NACUA ADA/FMLA Resources and Links (password protected)


 

updated Feb. 12, 2013  to add Feb. 6 final rule on military caregiver leave

updated 2/20/13 to add DOL guidance on adult children and caregivers

updated 3/7/13 CCR