FMLA Changes for 2008 - the Facts

by Michael Holzschu

FMLA CHANGES

On February 11, 2008, The US Department of labor  issued an insert for the current FMLA poster and also issued a Notice of Proposed Rule Making to Amend the FMLA.

The insert for the FMLA poster addresses the two new qualifying events that President Bush signed into law on January 28, 2008 as part of the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. XXXX. Among other things,  the NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of 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."

The provisions in the NDAA providing this leave are effective at two different times.

• Event 1 will not be effective until the Secretary of Labor issues the final regulations. 

• Event 2 is effective immediately.

(Scroll down to see the details of the new qualifying events.)

In the interim, the Department of Labor Wage and Hour Division will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as appropriate (for example, procedures regarding substitution of paid leave and notice). There is also the possibility that the FMLA final changes may affect USERRA requirements also.

The original provisions of FMLA remain and will apply to these new types of FMLA leave, including employer coverage, employee eligibility requirements, health insurance continuation, and reinstatement rights. As with the original program, employees may use the leave on an incremental basis or in the smallest increment that the employer's payroll system tracks or leave-tracking system is setup for.

The legislation creates two new qualifying events to the original four of FMLA:

1) Leave During Family Member's Active Duty -- Employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces may take up to 12 weeks of FMLA leave yearly when they experience a "qualifying exigency." By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency."

2) Injured Service member Family Leave -- Employees who are the spouse, parent, child, or next of kin of a service member who incurred a serious injury or illness on active duty in the Armed Forces may take up to 26 weeks of leave to care for the injured service member in a 12-month period (in combination with regular FMLA leave). This provision is effective with signing. The Department of Labor is preparing updated information.

Steps employers should take now to comply:

• All employees should be notified of the new leave entitlements.

• You should revise your current FMLA policies and procedures to reflect these changes to the FMLA. This will include requests for FMLA forms, response forms and medical certification forms.

• Be aware that the new regulations from the Department of Labor will probably become available faster then usual.

Michael A. Holzschu is the managing principal in the firm of Holzschu, Jordan Schiff & Associates specializing in Human Resource Systems, with a special focus on employee handbooks, job descriptions, performance appraisal systems, harassment training, safety and quality issues. He can be contacted at (248) 476-6907 or by email at mholzschu@hjsa.com or mholzschu@businessknowhow.com . The company's client base is primarily small to medium employers from all types of industries located throughout the United States.