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FMLA Flash: US DOL Announces Proposed Regulations to Support 2009 Amendments

The U.S. Department of Labor today introduced proposed regulations to implement and interpret the 2009 amendments to the federal Family and Medical Leave Act (FMLA).  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

The FMLA was amended twice in 2009, first by the National Defense Authorization Act for Fiscal Year 2010 (NDAA FY 2010, effective in October 2009), and then by the Airline Flight Crew Technical Corrections Act (AFCTCA, effective in December 2009).

See below for:

  • A summary of the 2009 FMLA amendments
  • Key provisions of the proposed new regulations
  • What employers should do now

FMLA 2009 Amendments

The NDAA FY 2010 included statutory amendments that expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions.  Military caregiver leave provides time off for an employee to care for a family member with a serious illness or injury incurred in the line of military duty.  Qualifying exigency leave provides time off for an employee to attend to certain legal, financial, family, and other matters related to a family member’s military deployment.

The amendments:

  • extended military caregiver leave to eligible employees whose family members are recent veterans (active within the past 5 years) with serious injuries or illnesses;
  • expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions;
  • 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.

The Airline Flight Crew Technical Corrections Act (effective in December 2009) established a special FMLA hours of service eligibility requirement for airline flight crew members, such as pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she:

  • has worked or been paid for not less than 60 percent of the applicable total monthly guarantee;  and
  • has worked or been paid for not less than 504 hours during the previous 12 months.

Major Provisions of the Proposed Regulations

The DOL implements new regulations for laws within its authority by publishing a Notice of Proposed Rulemaking (NPRM). Many of today’s NPRM proposed rules interpret the 2009 FMLA amendments summarized above.  In addition, major provisions include:

Military Caregiver Leave:

  • providing a new,  flexible, three-part definition for serious injury or illness of a veteran
  • expanding the type of health care providers who can provide a medical certification to include providers who are not affiliated with the military

Qualifying Exigency Leave:

  • including a new foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces)
  • expanding the amount of FMLA leave an eligible employee may take to spend time with a military family member during rest and recuperation from 5 days to 15 days

Airline Flight Crew FMLA Eligibility Rules:

  • adding specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

What Employers Should Do Now

  • Comply with the NDAA FY 2010 and AFCTCA amendments – they went into effect in 2009.  Employers covered by the FMLA must comply with these amendments even though they do not have supporting and interpretive regulations.
  • Review and, if desired, submit written comments on the proposed rules at www.regulations.gov. Once the NPRM has been published in the Federal Register, interested parties will have 60 days to submit comments and suggestions.
  • Relax!  These are just proposed rules, not final.  The process is slow, and changes in the proposals can be expected.
  • Contact Reed Group if you have questions about this or any other leave issue.
    • Leave of Absence Advisor, an on-line resource for authoritative guidance to federal and state LoA management:  866.889.4449 or email  or check it out: http://leaves.mdguidelines.com/

Additional Information on the NPRM:

NOTICE OF PROPOSED RULEMAKING (WITH PROPOSED RULES):

http://www.dol.gov/whd/fmla/NPRM/FMLA_NPRM_2012.pdf

DOL INTRODUCTION:

http://www.dol.gov/whd/fmla/NPRM/

DOL FAQs:

http://www.dol.gov/whd/fmla/NPRM/FAQs.htm

Connecticut Paid Sick Leave – Employers, Start Your Engines

By Martha J. Cardi, Reed Group Chief Compliance Officer

Paid sick leave becomes a reality for many employers in Connecticut on January 1, 2012, as the first paid state sick leave law in the country goes into effect.  Employers without employees in Connecticut should watch the developments there with interest – what happens in Connecticut doesn’t necessarily stay in Connecticut.

Employee eligibility, accrual and usage rules, and other features of the law will make it a compliance challenge for covered employers, at least initially.  We previously reported on the complex requirements of the law here.

Fortunately, the Connecticut Department of Labor has come to the rescue.  A 15-page Guidance published by the DOL explains its take on many areas of the law that are not clear from the statute.

Read on for –

  • a summary of some of the law’s provisions clarified by the Connecticut DOL Guidance, and
  • links to key resources for employers.

Fortunately, the Connecticut Department of Labor has come to the rescue.  A 15-page Guidance published by the DOL explains its take on many areas of the law that are not clear from the statute.  Here is a summary of a few of the helpful explanations from the Guidance:

Covered Employees:  “Service Worker.”  [Sec. 1(7)]  The statute is applicable only to “service workers.”  Both the law itself and the Guidance contain a full listing of the covered worker categories.  But, the Guidance warns that “[i]f a job title is not listed specifically, it does not mean that the job is not included in one of the prescribed classifications.  The employer must read the broad and detailed occupations and descriptions provided on the Bureau of Labor Statistics website . . . ”

“680 Hours of Employment” and “Break in Service.”  [Secs. 2(b) and 4(c)]  Service workers cannot use accrued paid sick leave until they have at least 680 hours of employment with the employer.   The Guidance addresses several points:

  • The 680 hour requirement is a one-time requirement.  Once a service worker meets this requirement, he or she never has to meet it again for the same employer, despite a break in service of any length (1 month or 5 years, it carries over).
  • If there is a break in service before the employee has worked for 680 hours, the employee’s hours carry over if he or she is again hired by the same employer.  Thus, an employee who works for 350 hours before a break in service would only have to work another 330 hours upon reemployment to be entitled to start using accrued paid sick leave.
  • Accrued sick leave hours do not carry over to a new period of employment following a break in service.  If the service worker returns to work at that same employer, then the service worker begins to accrue paid sick leave hours anew.

Pay Rate. [Sec. 2(d)For service workers whose normal hourly wage is lower than minimum wage, such as service workers who earn a tip credit, they should be paid minimum wage for any paid sick leave hours that they use. In addition, overtime and commissions are not to be calculated and included in the determination of a service workers “normal hourly wage.”

Documentation.  [Sec. 3(b)]  Employers may only require the employee to provide documentation of the reason for absence if the employee uses paid sick leave for 3 or more consecutive work day absences, not calendar days. The absences do no need to be full days, but include any time taken off from work as paid sick leave during a work day. Example: a service worker who is scheduled to work Friday, Monday, and Tuesday, who uses paid sick leave for any portion of those three days in a row, could be required by his/her employer to obtain reasonable documentation from his/her health care provider. Unlike the FMLA, however, there is no provision for an employer to seek clarification of the health care provider’s note or a second opinion if the employer questions the documentation.

STAY TUNED FOR OUR NEXT POST:  The Importance of Getting it “Just Right”:  Communications with Employees on FMLA Leave