Tag Archives: FMLA

Obama signs FMLA Amendments Relating to Military Caregiver Leave

Thanks again to the FMLA Blog for a quick summary of this week’s amendments to the FMLA. As I wrote last year, the FMLA was amended previously to provide certain types of leave for employees dealing with various family matters involving service in the armed forces.

The new provisions that were signed into law by President Obama this week further to expand the number and type of circumstances in which FMLA leave can be taken for military related reasons.

Employers should be sure that their FMLA policies are up to date to reflect these new military leave requirements.

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Labor Department Publishes Final FMLA Regulations – Part 3

In Part 1 of this series on the new FMLA regulations, we considered the exigencies related to military service that now are FMLA-qualifying events.  In Part 2 of the series, we looked at the regulations relating to the new 26-week leave entitlement for the care of a servicemember in the employee’s family.  The new regulations dealing with those two topics are brand new and are designed to address the new types of leave created by recent Congressional amendments to the FMLA.

In this third and final installment in this series, we will look at some changes made to the “old” FMLA provisions, to update or clarify existing issues.

Eligible Employees

In order to be eligible for FMLA leave, an employee must have worked for their covered employer for at least 12 total months.  The old regulations were silent, though, about whether the 12 months must be consecutive, and, if not, how far back an employer was required to look to calculate the 12 total months.  The new regulations make clear that the time must not be consecutive but that an employee only look back 7 years.

In other words, if an employee worked for a period of 6 months five years ago, and then returns to employment now, that employee need work only 6 more months in order to meet this eligibility requirement for FMLA leave.  The exceptions to this requirement that an employer consider time worked during the last seven years only is when the leave of more than seven years was due to military service or is addressed by some written contract or collective bargaining agreement that explicitly provides for reemployment after some specific type of leave.

Employer notice requirements

The new regulations consolidate all of the notice provisions into one section.  In addition, the regulations make clear that

“When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.”

The notable difference in the new regulations is that when an employer concludes that an employee is not entitled to FMLA leave, the notice must state explicitly that the employee is not eligible and must include at least one reason why the employee is not eligible.  The regulations also require that the notice include detailed information about various rights and responsibilities of the employee pursuant to the FMLA.

Also, consistent with recent US Supreme Court precedent, the employer may retroactively designate a leave as FMLA leave.  To do so, though, the regulations require that the retroactive designation not act to cause harm or injury to the employee.

Employee Notice

Generally, an employee must provide 30 days notice of the need for FMLA leave, when the employee knows that he or she will need such leave.  If 30 days notice is not practicable, the notice must be given as soon as practicable.  The regulations specify, then, that

“As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.  When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.”

Note that the notice must be given the same day or the next business day when the employee knows that he or she needs the leave.  The new regulations also specify that an employee can be required to comply with an employer’s regular policies relating to requests for leave.  For example, the employee may be required, consistent with the FMLA, to direct the leave request to a particular individual and to include in the leave request certain information normally required of employees who request time off.

Interestingly, the new regulations now provide that when an employee fails to provide adequate notice, the employer may delay the leave by the same amount of time the notice was delayed.  For example, if an employee could foresee the need for leave more than 30 days ahead of the time for leave, but did not give notice more than 30 days prior to the need for leave, the employer may delay the FMLA leave until 30 days after the notice was given.  Additionally, in a case in which the employee did not have an ability to provide notice 30 days in advance, the regulations provide this example:

For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week (thus, if the employer elects to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave will not be FMLA protected).

There are a number of other changes to the regulations, but these are some significant ones that are sure to affect many leave requests.  As always, when making important personnel decisions, such as considering leave requests, be sure to get competent legal counsel in this rapidly changing and highly regulated employment environment.

–  Read Part 1 of the review of the FMLA regulations

–  Read Part 2 of the review of the FMLA regulations


Labor Department Publishes Final FMLA Regulations – Part 2

In Part 1 of my review of the new FMLA regulations adopted by the US Department of Labor, we took a look at what types of events would constitute “qualifying exigencies,” since the FMLA was amended to require that employers provide 12 weeks of unpaid leave for employees for such a purpose.

The recent amendments to the FMLA, however, include a second new reason for which an employee can qualify for leave.  An employee now is entitled to up to 26 weeks of unpaid leave – not just the normal 12 weeks for all other FMLA qualifying events – “to care for a covered service member with a serious injury or illness.”  This type of FMLA leave is available only for a spouse, parent, child or next of kin of the service member.

The new regulations, which become effective January 16, 2009, explain how this new type of FMLA-qualifying leave is to be applied.  The main language of the regulations provide the following:

Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list.

Note first that the regulations clearly require that the care be for a current service member.  In fact, they go on to explicitly exclude care for a retired service member.

The regulations then go to define the term “serious injury or illness” as an injury or illness that is incurred by a covered service member in the line of duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.

One interesting difference between this type of FMLA leave and all other FMLA-qualifying leave is that an eligible employee may take up to 26 weeks per 12 month period for this type of leave, as opposed to the typical 12 weeks for all other FMLA purposes.

The new regulations address how this works, when an employee may need to use both types of leave in the same 12 month period.  For example, if an employee takes 12 weeks of unpaid FMLA leave for the birth of a child (another FMLA-qualifying event), the regulations require that the employee still could take another 14 weeks during that same 12 month period to care for a spouse who has a serious injury or illness incurred in active duty military service.

Similarly, if an employee has taken 20 weeks of unpaid leave to care for a service member with a serious injury or illness, he or she only will be able to take another 6 weeks of FMLA leave, during that same 12 month period, for any other FMLA qualifying purpose.

In some cases, a leave that is to care for a service member with a serious injury or illness also will meet the criteria for a leave that is to care for a family member with a serious health condition, which was one of the original types of FMLA leave.  The new regulations make clear that when a leave could qualiofy for both, the employer must first consider the leave against the employee’s 26-week entitlement for the care for a service member’s serious injury or illness.

Finally, the last item of note with respect to this new type of FMLA-qualifying leave is that the regulations make clear that when a husband and wife are both employed by the same employer, they are entitled to a combined 26 weeks for this purpose.  This is consistent with prior regulations, which made clear that a husband and wife who work for the same employer are entitled to a combined 12 weeks for all other FMLA purposes.

In addition to new regulations that are designed to address the two new types of FMLA-qualifying leave, the new regulations also make some changes to the existing scheme.  That will be our topic for Part 3 of this series on the new FMLA regulations.  Stay tuned.

–  Read Part 1 of the review of the FMLA regulations

–  Read Part 3 of the review of the FMLA regulations


Labor Department Publishes Final FMLA Regulations – Part 1

The United States Department of Labor has published final regulations interpreting several different provisions of the Family and Medical Leave Act (FMLA).  These new regulations go into effect on January 16, 2009.

Part of the purpose of the new regulations is to interpret the new amendments to the Act, which now provides leave for certain military-related purposes.  The recent amendments to the FMLA, which I previously wrote about, now permit an employee to take unpaid FMLA leave for “any qualifying exigency” arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces.

The new regulations define this term “qualifying exigency” as including a number of specified incidents, including (as paraphrased directly from the regulations):

1. Short-notice deployment. (To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty seven or less calendar days prior to the date of deployment.)

2.  Military events and related activities.  (To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member, etc.)

3.  Childcare and school activities.  (To arrange for alternative childcare, for example, when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement for a child a covered military member, or to provide childcare on an urgent, immediate need basis – but not on a routine, regular, or everyday basis – when the need to provide such care arises from the active duty or call to active duty status.)

4.  Financial and legal arrangements.  (To make or update financial or legal arrangements to address the covered military member’s absence while on active duty, such as preparing and
executing financial and healthcare powers of attorney, transferring bank account signature authority, or preparing or updating a will or living trust.)

5.  Counseling.  (To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for the child of the covered military member, provided that the need for counseling arises from the active duty of a covered military member.)

6.  Rest and recuperation.  (To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.  This leave may be taken for only up to five days for each instance of rest and recuperation.)

7.  Post-deployment activities.  (To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period
of 90 days following the termination of the covered military member’s active
duty status, or to address issues that arise from the death of a covered military member
while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.)

8.  Additional activities that arise out of the covered military member’s active duty provided
that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

As you can imagine, the regulations provide more detail for the items described above.  If you have an employee who requests to take advantage of this new type of FMLA leave, be sure to consult with counsel to make sure that the new regulations are being followed properly.

I will write more later to outline some of the other changes that have been made to the regulations.

–  Read Part 2 of the review of the FMLA regulations

–  Read Part 3 of the review of the FMLA regulations


Feeling “Stressed Out” Not Enough By Itself to Warrant FMLA Protection

Thanks to the FMLA Blog for the heads-up on a recent New Jersey case in which the Court considered whether an employee’s statement that he was “stressed out” and didn’t know what to do was enough to put his employer on notice that he had a serious health condition that would qualify him for FMLA leave.

As a reminder, when an employee seeks leave and, even without specifically mentioning a serious health condition or the FMLA, provides the employer with sufficient information to cause a reasonable employer to believe that the leave may be for an FMLA-qualifying serious health condition, the employer has a duty to inquire about the reason for the leave. This is to enable the employer to determine whether the leave in fact is FMLA-qualifying.

Fortunately for employers, this case shows that there is at least some amount of information necessary, before the court will shift the burden to the employer.


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