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Recent Changes to the FMLA Amendments

May 2009

Eight years after the U.S. Supreme Court held that regulations issued by the Department of Labor (DOL) were invalid, the DOL has revised its FMLA regulations.  In addition to addressing the concerns raised by the Supreme Court, the DOL clarified previous regulations, made changes where practical problems were identified, and attempted to make handling FMLA requests more routine. 

Employers should be aware of these most significant changes.

Definition of Serious Health Condition

Employers had hoped that the DOL would significantly narrow the definition of “serious health condition.”  The DOL acknowledged that many of the problems employers are facing are legitimate but concluded that it could not make material changes without taking away protections for clearly covered conditions.  Therefore, the DOL only tweaked the regulations:

The Amount of Time Charged Against An Employee’s FMLA Leave

The new regulations, like the old, state that generally an employer cannot charge an employee for more FMLA than is taken.  In other words, if an employee only needs three hours of FMLA leave, he or she cannot be required to take a whole day.  However, the new regulations have modified this requirement in several ways:

Substitution of Compensatory Time

The new regulations allow a public employer to coordinate compensatory time off provided to employees like firefighters and police officers with FMLA leave.

Attendance and Production Incentives

The original regulations did not allow an employer to deny an attendance or production bonus where an employee had earned that bonus up until the time leave was taken.  The new regulations allow an employer to deny a bonus where the specified goal (such as hours worked, products sold, or perfect attendance) is not met, so long as the bonus is also denied to other employees on an equivalent leave status.  In addition to requiring that the bonus be paid if employees on other unpaid leave are covered, this means that if the employee is coordinating paid time off, the employee must be treated like others receiving the same pay, such as vacation pay.

Forms and Notices

The FMLA process is now highly regulated, with strict time tables and extensive forms.  The following summarizes the new procedure. Employers should review the new DOL forms and consult with counsel where appropriate:

Leave for the Serious Injury or Illness of a Covered Service Member

This new form of FMLA leave allows an employee to take time off to care for a family member who has been injured during military service.  It differs from traditional FMLA leave in the following ways:

Leave for “Qualified Exigencies”

This is a new form of FMLA leave for the family members of an individual called to active military service from the National Guard, the Reserves, or military requirement.  Unlike leave for “serious illness or injury,” this leave follows the normal 12 weeks per year FMLA model and applies only to the employee’s parent, spouse, or child.  Like leave for “serious illness or injury,” the “child” may be an adult.  “Qualified exigencies” include:

The circumstances under which each of these leaves can be taken, and the amount allowed for each, are set forth in the regulations.

Megan P. Norris is the leader of the Labor + Employment Group at Miller Canfield.  Contact her at (313) 496-7594 or