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 FMLA Rules Expand,
Add Military Family
Leave
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Significant changes and
expansions in the federal Family and Medical Leave Act
(FMLA) are effective starting Jan. 16, 2009.
The biggest changes for
employers and qualified employees involve leave rights
for military families. The new rules cover 201 pages in
the Federal Register. In addition to detailing
family and medical leave benefits to qualifying family
members of military personnel, they further clarify
definitions, benefits, and requirements in the FMLA.
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Word
FMLA Benefit
Accurately |
| Careful.
Employers who are casual or inexact in
communicating the FMLA benefit to employees can
end up, figuratively, with egg on their faces.
The federal Family and Medical Leave
Act (FMLA) rules and regulations are lengthy
and complex. In communicating the FMLA benefit to
employees, employers need to fully understand
their own obligations and employee benefit rights.
And employers need to accurately communicate
exactly what they intend to employees. If the
communication isn't accurate, it can get costly
for the employer.
 Case in
point: Consider what happened when Gilead
Sciences, Inc. (the employer) terminated Steven
Peters (the employee) after he was away on what he
thought was FMLA leave promised him by his
employer. Gilead Sciences refused to honor Peters'
claim for FMLA rights. So Peters sued Gilead
Sciences. The 7th Circuit U.S. Court of Appeals
recently ruled in favor of Peters.
Gilead Sciences had communicated to Peters in
letters and in the employee handbook that he was
entitled to take FMLA leave.
The employer's handbook stated: "A request for
family and medical care leave will be granted for
all employees (boldface added)
employed by the Company for at least twelve months
and who have worked 1,250 hours during the twelve
months preceding the commencement of leave."
In one letter to Peters, after his leave
started, the company stated: "You will retain your
employee status during the period of your FMLA
Leave."
But Gilead Sciences then terminated Peters
claiming that he wasn't entitled to the protection
of the FMLA because the company did not employee
50 or more employees within 75 miles of the
worksite. Unfortunately for the employer, though,
this requirement was never communicated to Peters
or to the other employees. As the court
stated:
"That is, the handbook and letters stated that
family and medical leave would be provided to 'all
employees' who were employed with Gilead for at
least 12 months with a minimum of 1,250 hours
worked during the prior 12 months; neither the
handbook nor the letters contained any reference
to the 50/75
exception." |
Following are key questions
involving the FMLA rules changes, and
answers:
Which
employers are covered by the FMLA?
The
FMLA covers all employers who employ 50 or more
employees...within 75 miles of a worksite... for each
working day during each of 20 or more calendar workweeks
in the current or preceding calendar
year.
When an employee has no fixed
worksite (such as a traveling salesperson) the location
from which the work is assigned or to which the employee
reports is the worksite. This also applies to remote or
telecommuting employees. The 75-mile distance is
measured by surface miles, using surface transportation
over public streets, roads, highways and waterways, by
the shortest route from the employee's worksite.
Which
employees may be eligible for taking FMLA and military
caregiver leave?
Under
FMLA, an eligible employee works for a covered employer
and (1) has worked for the employer for at least 12
months, (2) has worked for the employer for at least
1,250 hours during the 12-month period immediately
preceding the start of the leave, and (3) is employed at
a worksite where 50 or more employees work for the
employer within 75 miles of that worksite. (The 12
months of employment need not be consecutive
months.)
What
is "military caregiver leave?"
This
benefit allows family members caring for a covered
military service member with a serious injury or illness
incurred in the line of duty on active duty to take FMLA
leave. These family members can take up to 26 workweeks
of leave in a single 12-month period. (FMLA leave for
other purposes is only 12 weeks in a 12-month period.)
Which
employees are considered "family members" for purposes
of taking military caregiver leave?
Included
as "family members" for purposes of taking military
caregiver leave are a spouse, son, daughter, parent, or
next of kin (nearest blood relative).
A son or daughter – for
purposes of military caregiver leave – applies to the
covered service member's "biological, adopted, or foster
child, stepchild, legal ward, or a child for whom the
service member stood in loco parentis, and who is of any
age." A parent of a covered service member is the
"covered service member's biological, adoptive, step or
foster father or mother, or any other individual who
stood in loco parentis to the covered service
member." (The definition of a parent does not include
parents-in-law.) A "next of kin" for purposes of
military caregiver leave is a service member's nearest
blood relative (other than the service member's spouse,
parent, son, or daughter) in the following order of
priority: blood relatives who have been granted legal
custody of the service member, brothers and sisters,
grandparents, aunts and uncles, and first
cousins.
And this is important: Family
members who share the same level of familial
relationship – such as all siblings – are considered the
service member's next of kin and each are entitled to
take military caregiver leave to care for the covered
service member. In addition, the covered service member
can expressly designate a blood relative to serve as his
or her only next of kin for military caregiver
leave.
Who
qualify as military service members?
A
military service member is 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 incurred in the line of duty
on active duty.
About
the 26 workweeks of military caregiver leave. Is a
qualified caregiver limited to 26 weeks of leave in just
one 12-month period? Or can this leave run over more
than one 12-month period?
To start with, an eligible employee qualifies for a
combined total of 26 workweeks of leave for military
caregiver leave and for leave for any other
FMLA-qualified leave during the same single 12-month
period. But the eligible employee must take no more
than 12 workweeks of leave for a qualifying
exigency or for any other FMLA-type
reason.
For the military
caregiver leave the 12-month period begins
on the first day the eligible employee takes the
military caregiver leave and ends 12 months after that
date. (The employer can set another method of defining
the 12-month period for other types of FMLA
leave.)
Also, an eligible employee
may qualify for more than one period of 26 workweeks of
leave if the military caregiver leave is for caring for
different covered service members or to care for the
same service member who has sustained a subsequent
serious injury or illness. But no more than 26 workweeks
can be taken for any FMLA purpose within any single
12-month period.
How
can an employer define the 12-month period in
which an eligible employee can take the 12 weeks of FMLA
leave (other than military caregiver leave)?
The
employer can use one of these four methods for defining
the 12-month period for FMLA leave: (a) the calendar
year, (b) any fixed 12-month period, (c) a
12-month-forward period measured forward from
the date of an employee's first day of FMLA leave, or
(d) a rolling 12-month period measured backward
from the date an employee uses any FMLA leave. (Note:
For purposes of the military caregiver leave, the
12-month period is the period that begins with the start
of the caregiver leave regardless of how the employer
defines the 12-month period for using other types of
FMLA leave.)
What's
the Qualifying Exigency Leave?
This
FMLA leave provides up to 12 weeks of leave arising out
of the fact that the spouse, or a son, daughter, or
parent of the employee is a member of one of the U.S.
Armed Force's Reserve Components or National Guard on
active duty (or has been notified of an impending call
or order to active duty) or is a reservist or member of
the National Guard who faces recall to active duty if a
qualifying exigency exists.
So
what's a qualifying
exigency?
The
Department of Labor's definition is a non-exhaustive
list of types of circumstances that qualify. A
dictionary definition of exigency is: A situation
calling for immediate attention, urgency, pressing
needs. The new regulations give examples of qualifying
exigencies for purposes of FMLA leave: Following are
some of the examples:
Short notice deployment. Example: To deal with
issues occurring when a military member gets notified
of an impending call or order to active duty seven or
fewer calendar days prior to deployment.
Military events and related activities. Example:
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.
Childcare and school activities. Example: Need to
arrange for childcare for a covered military member's
child.
Financial and legal arrangements. Example: Need to
make financial or legal arrangements for a covered
military member while on active duty or called to
active duty.
These
new FMLA and military caregiver leave rules must require
that a covered employer give some notification to
employees and post new information. And there must be
new forms to use. Where can an employer get more
information, a new poster, and new
forms?
An
employer can get detailed information from two Websites:
http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763 and http://www.dol.gov/esa/whd/fmla/finalrule.htm . Seven new forms and a new poster
are available also from http://www.dol.gov/esa/whd/fmla/finalrule.htm .
[NOTE: Information and
guidance in this story is intended to provide accurate
and helpful information on the subjects covered. It is
not intended to provide a legal service for readers'
individual needs. For legal guidance in your specific
situations, always consult with an attorney who is
familiar with employment law and labor
issues.]
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