IMPORTANT EMPLOYMENT LAW NEWS
March 28, 2008
This quarter’s employment alert focuses on recent activity by Congress and the U.S. Department of Labor with respect to the Family and Medical Leave Act ("FMLA"), and activity by the U.S. Equal Employment Opportunity Commission regarding a rule about employee health benefits.
For employers covered by the Family and Medical Leave Act,
April 11 may be as important as April 15 this year
This alert focuses first on changes to the FMLA and proposed new FMLA regulations. The deadline for comments to the Department of Labor is April 11, 2008, on these very significant FMLA issues, described briefly below and also described on the Department of Labor website.
You may comment by mail or online through the Federal eRulemaking Portal. Follow the instructions for submitting comments. Remember that any comment submissions will be posted online and available for public viewing. If you have questions or need help in formulating your comments, please do not hesitate to contact us.
Military Leave Amendment to the Family and Medical Leave Act
The FMLA was recently amended by the National Defense Authorization Act expanding the scope of the FMLA in two significant areas with respect to military-related leave. To see the Department of Labor’s description of these changes, click here.
26 workweeks of leave to care for injured member of the Armed Services
First, effective January 28, 2008, the FMLA was amended to permit a spouse, son, daughter, parent, or next of kin (defined as the “nearest blood relative”) to take up to 26 workweeks of job-protected leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” Such leave is characterized as “Servicemember Family Leave” under the FMLA.
An employee is entitled to no more than a total of 26 workweeks leave under the FMLA, whether traditional FMLA leave or Servicemember Family Leave. For example, it would appear that this means that if, during an FMLA leave year, an employee already has taken 12 weeks of leave for the birth of a child, the employee would be entitled to an additional 14 weeks of Servicemember Family Leave.
Please note that employees not entitled to the additional leave time as Servicemember Family Leave, are still only entitled to 12 workweeks of FMLA leave.
12 workweeks of leave for “qualifying exigency” relating to military active duty
Second, the amendment also allows an employee to take 12 weeks of FMLA leave because of 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 in support of a contingency operation.” The term “qualifying exigency” is to be defined in the FMLA regulations by the U.S. Department of Labor.
The Congressman who introduced this provision suggested that a qualifying exigency could be arranging for childcare, or attending predeployment briefing and family support sessions. The Department of Labor is seeking comments from any interested party regarding how the term “qualifying exigency” should be defined. The Department has posed various questions for which it seeks commentary, including: “Should qualifying exigencies be limited to those items of an urgent or one-time nature arising from deployment as opposed to routine, everyday life occurrences?”
The Department of Labor also seeks data related to the economic impact of the military leave provisions, stating that it will “implement the new military family leave provisions so as to maximize the benefits and minimize the burdens on both employees and employers consistent with the purposes of the FMLA.”
If you anticipate that these military leave amendments will impact your workforce and would like to provide comments (as explained above), they are due by April 11, 2008, through the Federal eRulemaking Portal.
Proposed Changes to FMLA Regulations (Not Related to Military Leave)
In addition to the military-related changes to the FMLA, the Department of Labor has issued proposed changes to the FMLA regulations, to which comments are also due on April 11, 2008. To view the proposed changes, click here.”
The proposed regulations are based on fifteen years of experience by the Department of Labor in administering the FMLA, two studies of the FMLA that the Department of Labor did in 1996 and 2001, various court decisions, and more than 15,000 public comments received in response to a 2006 request for information about the experience of employers and employees with the FMLA.
These proposed changes to the FMLA regulations address a lot of major and minor issues, including but not limited to:
- Stating that time spent while on a “light duty” assignment does not count against an employee’s FMLA leave entitlement;
- Changing the treatment of “perfect attendance” awards to allow employers to deny a “perfect attendance” award to an employee who takes FMLA leave as long as it treats employees taking non-FMLA leave in an identical way;
- Consolidating all of the employer notice requirements into a “one-stop” section of the regulations, extending the time for employers to send out eligibility and designation notices from two days to five days, and specifying that if an employer finds a certification lacking the employer must return it to the employee, specify in writing which information is lacking, and give the employee seven days to cure the deficiency;
- Allowing employers to have direct contact with health care providers to clarify a medical certification, and clarifying when employers may seek re-certification;
- Changing what employers may require in the fitness-for-duty certification, and allowing such a certification for intermittent leave where there are reasonable job safety concerns.
The proposed changes also include revised FMLA forms, contained at the end of the proposed rule changes. The proposed new forms attempt to address some of the lack of clarity found in the current forms.
If you would like to provide comments on the proposed new FMLA regulations and/or new forms (as explained above), comments are due by April 11, 2008, through the Federal eRulemaking Portal.
EEOC Rule on Coordination of Health Benefits Offered to Retirees with Medicare without Violating the ADEA
The EEOC has issued a final rule that allows employers to coordinate the health benefits they offer retirees with Medicare (or comparable state health benefits) without violating the Age Discrimination in Employment Act (“ADEA”). The rule can be found here.
Specifically, the rule allows employers who provide retiree health benefits to continue the practice of coordinating those benefits with Medicare, without ensuring that Medicare-eligible retirees are receiving the same benefits as younger retirees. The rule was effective December 26, 2007.
Please feel free to contact us if you wish to discuss any of the issues raised herein, or any other legal issue for which you may need assistance. |
