New FMLA Benefits For Military Effective March 8

On February 6, 2013, the Department of Labor ("DOL") issued its final regulations on Family and Medical Leave Act ("FMLA") relating to military leave.  These regulations will go into effect March 8, 2013.

According to the DOL, “providing job-protected leave for caregivers of covered veterans under the military caregiver provision is expected to increase family involvement in the veteran’s recovery, improve self-reliance and access to resources for caregivers, and reduce negative outcomes for covered veterans and their families.”

The Department of Labor estimates that as many as 381,000 employers and government agencies could be affected by new regulations.

Military Leave Under the FMLA

There are two categories of job-protected leave under the FMLA for eligible employees with military family members: (1) caregiver leave of up to 26 weeks for those employees who provide care for covered service members with a serious injury or illness; and (2) exigency leave of up to 12 weeks for qualifying exigencies arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.  Click here to see a side-by-side comparison of of the current and final regulations.

Summary of Changes to the Military Family Leave
Effective March 8, 2013, FMLA regulations will:

• Expand exigency leave to include eligible employees with family members serving in the Regular Armed Forces, and further require that the military family member be deployed to a foreign country;
• Increase exigency leave for rest and recuperation from five days under previous regulations to a maximum of 15 days;
• Extend exigency leave to cover parental care;
• Expand the definition of serious injury or illness for caregiver leave to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty;
• Extend caregiver leave to include care for a covered veteran, defined as an individual who is undergoing medical treatment, recuperation or therapy for a serious injury or illness, and who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran;
• Expand the definition of serious injury or illness of a covered veteran to include, among other things, a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces;
• Expand the list of authorized health care providers from whom an employee may obtain a certification to include those outside the military, and permit employees to request a second and third opinion from health care providers who are not affiliated with the military.

Bottom Line for Employers

• You have a few weeks to before these revisions take effect.  Use this time to become familiar with the revisions and their implications and to:
• Revise FMLA policies to reflect the expanded categories of caregiver and exigency leave reflected in the final regulations.
• Continue to train supervisors and human resource professionals on FMLA leave to insure that the requests are addressed and that necessary certification processes are followed.
• Replace your current FMLA posters with the revised poster (available on the DOL website). 

If you have any questions about these regulations or FMLA in general, contact me or visit my website.

Happy 20th Birthday FMLA!!

In 1993, President Bill Clinton signed the Family Medical Leave Act ("FMLA" or "the Act") into law. FMLA allows workers to take up to 12 weeks of unpaid leave to bond with a newborn, newly adopted or newly placed child; care for a seriously ill child, spouse or parent; or care for their own serious health condition without fear of losing their jobs.  With this legislation came the acknowledgement that the workforce was changing and therefore the needs of this changing workforce needed to be addressed.  In many ways, FMLA transformed the workplace and had a significant impact on families by helping millions of workers take job-protected leave to recuperate from a serious illness or take care of an ill family member, or give birth or adopt a new child.

Here are some key findings from the Department of Labor's 2012 FMLA Survey.

• Most Worksites Aren’t Covered By The FMLA -  but more than half of all employees are eligible. To be covered by the FMLA, a worksite must be part of a firm with at least 50 employees. Only about one in six worksites reports that it is covered by the FMLA (17%); another 30 percent are unsure. These uncovered and unsure worksites tend to be small; covered worksites tend to be larger.
• Not All Employees At Covered Worksites Are Eligible. To be eligible an employee must: (i) work for a firm with 50 employees within 75 miles of the worksite; (ii) have 12 months of tenure with this firm; and (iii) have worked 1,250 hours in the past year (about 24 hours per week). Only slightly more than half of all employees report meeting all three of these conditions to be eligible for the protections of the FMLA (59%).  
• Leave Is Not Uncommon.  Most leave taken is for the employee’s own illness (57%). Leave for pregnancy or a new child and illness of qualifying relative (spouse, child, or parent) is less common (22% and 19% respectively). Leave for other qualifying reasons, including military reasons is quite rare (2%).  Most leave is short. Nearly half of all leave events last 10 days or less (42%); less than a fifth (17%) last more than 60 days. 
• Most Employees Receive Some Pay While On Leave.  While the Act includes no requirement that employers provide any pay during the leave. Nevertheless, most employees receive some pay while on leave: 48 percent report receiving full pay and another 17 percent receive partial pay, usually, but not exclusively, through regular paid vacation leave, sick leave, or other “paid time off” hours. 
• Most Employers Report Little Negative Impact From The FMLA.   Most covered worksites that are large enough to have eligible employees (that is, 50 employees within 75 miles) report little difficulty complying with the FMLA (only 14% report “somewhat difficult”; only 1% report “very difficult; weighting by worksite). However, larger worksites are more likely to report difficulty complying, such that when weighting by employees, these figures increase to 3 percent for “very difficult” and 29 percent for “somewhat difficult”. In addition, 30 percent report that the cost of administering the FMLA is rising (50% when weighting by employees). Few worksites (less than 10 percent) perceive negative effects of complying with the FMLA on “employee productivity, absenteeism, turnover, career advancement, and morale...business profitability”. However, these negative reports are more common among large firms (29% when weighting by employees).

Do You Really Want to Replace An Employee on FMLA Leave?

According to the Family and Medical Leave Act (FMLA), an employer must return an employee to the same or an equivalent position upon return from FMLA leave.  The question that many employers have is “What is an equivalent position?”

The regulations state that an "equivalent position" is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.  Still not clear?  The courts are might offer some guidance.   

Here's the scenario: 

A female computer teacher went on maternity leave.  Due to complications during delivery and a medical condition that her infant had, the teacher required a lengthy FMLA leave. Her school district hired a substitute teacher to take over her assignments during her leave of absence.   A few weeks later, the teacher on leave was informed by the school principal that he decided to replace her permanently.  The school district gave the teacher on leave the option of returning to a full-time classroom teacher position instead of a computer teaching position.  When she declined the classroom position, the school district terminated her employment.  The teacher is suing alleging FMLA interference and retaliation.  Read the filings here.

 

This case is currently being litigated but this scenario is not unique.  Employers are often tempted to make changes in their organizations when a current employee is out for period of time and especially when things seem to be going well with a new employee or the new arrangement.  However, replacing an employee on FMLA will likely expose your organization to litigation. 

The Bottom Line for Employers:

• Avoid permanently replacing employees while they're on FMLA leave.  Chances are, once you’ve found some way of insuring that their work is being performed, you can wait a few weeks or months until the employee returns to work.  

• If you can't wait and are returning an employee to an equivalent position, you should be able to articulate your reason for this decision (and its timing).  You should also be able to demonstrate that the new position requires the same level of duties, skill, responsibility, and offers the same compensation, earning potential, authority and career path and promotion opportunities within your organization as the prior position.