Overview of the FMLA. Objectives Today Federal FMLA Overview Expansion of FMLA Leave for Military...

Overview of the FMLA


Objectives Today• Federal FMLA Overview

• Expansion of FMLA Leave for Military Families and Airline Flight Crew Members

• Clarification of “Son or Daughter” Definition

• Department of Labor (DOL) Revised Regulations

• Employer Response to Updated FMLA

• Additional Resources


The Federal Family and Medical Leave Act of 1993 (FMLA)•The FMLA provides 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

– Birth and care of newborn child of employee;– Placement with employee of son or daughter for adoption or

foster care;– Care of immediate family member (spouse, child or parent)

with a serious health condition;


The Federal Family and Medical Leave Act of 1993 (FMLA)

(12 workweeks - continued):– Medical leave when the employee is unable to work because

of a serious health condition; and– Any qualifying exigency arising out of the covered active duty

(or call to covered active duty) of a family member (spouse, child or parent) in the Armed Forces.

•The FMLA provides 26 workweeks of unpaid leave during a single 12-month period to care for a covered servicemember who is the spouse, child, parent or next of kin.


The Federal Family and Medical Leave Act of 1993 (FMLA)•Employers Covered

– Any private employer that employs 50 or more employees during each working day for 20 or more weeks in current or preceding year

– 50 employees do not have to be at same worksite– Public employers also covered under separate provisions

•Employee Eligibility– Has worked for employer for at least a total of 12 months (need

not be consecutive);– Has worked at least 1,250 hours during the 12-month period

immediately preceding the leave; and– Works at a location where the employer has at least 50

employees within a 75-mile radius.


The Federal Family and Medical Leave Act of 1993 (FMLA)

(Employee Eligibility - continued):– An airline flight crew member is eligible to take FMLA leave if

member:• Has worked or been paid for at least 60 percent of the

applicable monthly guarantee (or the equivalent ) for the preceding 12-month period; and

• Has worked or been paid for at least 504 hours during the previous 12-month period.


The Federal Family and Medical Leave Act of 1993 (FMLA)•Substitution of Paid Leave

– Employee may choose or employer may require employee to substitute accrued paid leave in certain cases

•Notice and Certification– Regulations include detailed notice and certification

requirements

•Maintenance of Health Insurance– Employers must maintain group health coverage for employee

while on FMLA leave


The Federal Family and Medical Leave Act of 1993 (FMLA)•Intermittent Leave

– Allowed in certain circumstances

•Reinstatement of Employee– Most employees taking FMLA leave are entitled to be restored

to original position or to equivalent position with equivalent employment benefits, pay and other terms/conditions of employment


2008 / 2009 Amendments to FMLA• Jan. 28, 2008 – National Defense Authorization Act for fiscal

year 2008 was signed into law

– Added family member military leave: leave to care for ill or injured servicemember and exigency leave (reservists)

• Oct. 28, 2009 - National Defense Authorization Act for fiscal year 2010 was signed into law

– Expanded coverage for care of servicemembers and veterans and for exigency leave (active members)

• Dec. 21, 2009 – Airline Flight Crew Technical Corrections Act was signed into law

– Modified eligibility requirements for airline flight crew members


2008 / 2009 Amendments to FMLA• Provisions were added to the FMLA that provide:

– Leave by spouse, son, daughter or parent of member of Armed Forces called to covered active duty for “any qualifying exigency” arising because of that call to duty (exigency leave)

• 12 weeks of leave

– Leave by spouse, son, daughter, parent or next of kin to care for member of Armed Forces or of veteran with a serious injury or illness (military caregiver leave)

• 26 weeks of leave during a single 12-month period


2008 / 2009 Amendments to FMLA• Like all other types of FMLA leave, exigency leave and

military caregiver leave are unpaid• An employee may elect or an employer may require

the employee to substitute accrued vacation, personal leave or other accrued paid leave for the unpaid leave, if allowed by employer policy

• This leave may also be taken on an intermittent or reduced leave schedule, subject to existing FMLA regulations


2008 / 2009 Amendments to FMLA• Modified FMLA eligibility requirements for flight crew

members• An airline flight crew member is eligible to take FMLA

leave if member:– Has worked or been paid for at least 60 percent of the

applicable monthly guarantee (or the equivalent ) over the preceding 12-month period, and

– Has worked or been paid for at least 504 hours during the previous 12-month period


2008 / 2009 Amendments to FMLAAirline Flight Crew Members (continued) • Applicable monthly guarantee = the minimum number

of hours for which employer has agreed to schedule employee for any given month

• For employee on reserve status, applicable monthly guarantee = the minimum number of hours for which employer has agreed to pay employee for the month under CBA or employer's policies


2008 / 2009 Amendments to FMLAAirline Flight Crew Members (continued)• Minimum 504-hour requirement does not include

personal commute time or time spent on vacation leave or medical or sick leave

• Airlines are required to maintain on file with Secretary of Labor information specifying applicable monthly guarantee for each category of employee to which guarantee applies

• Secretary of Labor must issue regulations for new law


Clarification of “Son or Daughter” Definition• Under the FMLA, a “son or daughter” includes not only

a biological or adopted child, but also a foster child, stepchild, legal ward, or child of a person standing “in loco parentis” (in place of a parent)

• DOL issued interpretation letter on June 22, 2010 addressing the “in place of a parent” component as it applies to: – Leave for the birth or placement of a child or for the care of a

newborn or newly placed child, and– Leave to care for a child with a serious health condition


Clarification of “Son or Daughter” Definition• DOL clarifies that either day-to-day care OR financial

support may establish an “in place of a parent” relationship where the employee intends to assume parental responsibilities

• Factual determination for FMLA administrator• Broad interpretation in favor of expanded coverage for

nontraditional family relationships


Proposed Regulations• On Feb. 11, 2008, the DOL proposed new regulations:

– Correcting existing problems with the FMLA, and– Supplying interim guidance on military provisions of FMLA law

passed in January 2008 relating to family member’s military deployment, illness or incapacity

• Final revised regulations made significant changes and became effective on Jan. 16, 2009


Final Revised Regulations• The final revised regulations make many technical

changes to the existing regulations • The major areas changed include:

– Definitions (e.g., serious health condition, worksite, etc.)– Use of intermittent leave– Substitution of paid leave– Eligibility requirements


Final Revised RegulationsMore changed areas:

– Coverage to care for a family member (e.g., next of kin)– Counting FMLA leave– Employer and employee notice requirements – new forms– Medical certification process – new forms– Fitness for duty– Perfect-attendance awards– Waiver and release of FMLA claims


Final Revised RegulationsMore changed areas:

– Definitions under the new military leave amendments (e.g., next of kin, son or daughter, exigency)

– Certification for wounded servicemember leave – new form– Certification for exigency leave – new form– Calculating single 12-month period during which

servicemember leave is taken


Enforcement and Penalties• Under the FMLA, civil actions for damages or

injunctive relief can be brought by either an employee or by the Secretary of Labor

• Employees can recover lost wages, salary or employment benefits, along with any actual monetary losses suffered, including attorneys’ fees

• The Secretary of Labor can also conduct an investigation of the employer or bring a lawsuit on the employee’s behalf


Federal FMLA and Related State Laws• The FMLA does not impact related state laws• State or local laws may provide longer leave periods,

greater benefits or leave for other reasons (i.e., pregnancy leave, leave for attendance at school activities, crime victims, etc.)

• Employees have no obligation to designate whether the leave they are taking is FMLA leave as opposed to leave under state law


Federal FMLA and Related State Laws• Employers must comply with BOTH federal and state

laws and regulations• State and federal FMLA laws will be enforced

separately – states may enforce state laws and the DOL may enforce the federal FMLA

• Generally, employers should follow the leave law providing greater benefits to the employee, even if that means using different provisions from each law that provide the greater benefit in each instance


Select Items to Consider in Employer Response to FMLA•Those who administer FMLA leave rights should be aware that leave rights for families of military members and veterans, for airline flight crew members and for nontraditional families, have been expanded• Comply with revised posting and notice requirements

for notice of FMLA leave rights (see DOL notice at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf)


Select Items to Consider in Employer Response to FMLA•Update FMLA policies, employee handbooks and other documents describing FMLA leave to ensure they comply with revised law•Administrators and human resource professionals should carefully consider how the final revised regulations affect their workforce, the approval of leave requests and the need to further revise or update their procedures and use of necessary forms


FMLA Resources

•For more information regarding the FMLA and related DOL guidance, visit www.dol.gov/whd/fmla/index.htm


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Overview of the FMLA. Objectives Today Federal FMLA Overview Expansion of FMLA Leave for Military...

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