Recent Changes and Summaries of FMLA
Read the Entire Must Know Series
Notable Changes to FMLA Laws
The landmark Family Medical Leave Act that then-U.S. President Bill Clinton signed into law in 1993, is not the same as the legislation, body of regulation and case law that defines our FMLA law today.
The Act was designed to ensure U.S. employees who needed leave could take it without fear of losing their job in their most vulnerable hours. It was visionary, and a signature accomplishment of the Clinton administration – one that has since helped tens of millions of Americans. And while significantly broad in scope, time has brought to light certain situations, categories of employees, and types of leave, not covered by the Act, and recovering legislative and/or legal remedy.
2009 Changes to FMLA Law
In the 20 years since the Act’s first passage, some notable changes and challenges to FMLA laws have occurred. A 2002 U.S. Supreme Court ruling in the case of Ragsdale v Wolverine World Wide, Inc, contended that the U.S. Department of Labor had overstepped its authority in enforcement of one aspect of the law. In the wake of this Court case, the federal agency acknowledged shortcomings with both the law and, by extension, its administration of the Act. In 2009, the Department of Labor issued major adjustments to the regulations, by, in sum:
• Further defining what constitutes a “treatment” (as an inpatient visit within seven days);
• Expanding the definition of who constitutes a “health care provider” to include licensed physician assistants;
• Modifying eligibility for coverage under the provision for “incapacity for more than three days” requiring “continuing treatment by a health care provider” to mandate that employees must receive treatment within 30 days to be eligible;
• Tweaking eligibility requirements for coverage for those employees with “chronic serious health conditions” to ensure that leave requestors must receive treatment a minimum of twice a year;
• Adjusting the provision that employers cannot charge an employee for more FMLA leave than they need, by fine-tuning the tracking requirements;
• Allowing public employers to substitute comp time for FMLA leave;
• Denying attendance incentives to employees on leave (so long as such denial is consistent with all employees on leave);
• Laying out deadlines (five business days) for employers to provide employees of their eligibility and rights under the Act upon receipt of a leave form;
• Listing deadlines (fifteen days) for the employee to certify the reason for the leave request as for qualifying leave;
• Providing the employer with a deadline (five business days) for a response to the leave request, upon receipt of leave certification forms;
• Adding a provision that allows employees taking care of a directly related, injured member of the military to receive up to 26 weeks of unpaid leave within a 12 month period; and
• Adding another provision for the parent’s spouses or adult children of members of the military called upon for deployment to apply for up to 12 weeks of leave during a 12-month period. Leave is allowed for what are known as “qualified exigencies,” which include: rapid deployments, military events, childcare, financial planning, counseling, and additional activities arising from deployment.
2013 Changes to FMLA Law
Other major changes to the FMLA laws have since occurred, as part and parcel of 2010 amendments to the Airline Flight Crew Technical Corrections Act and the National Defense Authorization Act, which took effect on March 8, 2013. They included:
• Further modifications to how FMLA leave is calculated for tracking purposes;
• Changes to the provision that employers could charge FMLA leave to an employee who could not return to work due to circumstances beyond their control;
• Expansions to military leave provisions, such as:
o Allowing leave for caregivers of veterans separated from military service for up to five years;
o Permitting leave for the care of the injuries of veterans that were pre-existing and aggravated by military service; and
o Extending the veteran “rest and recuperation” period for which leave can be granted.
These modifications changed the FMLA laws significantly, expanding coverage for many and providing employers more guidance in their administration of the law.
It is a certainty that further changes to FMLA law will occur as time passes. The language in the original document was necessarily broad to cover a wide swath of employees. Ambiguity, and resulting inconsistent administration of the FMLA law by both the Department of Labor and by public and private employer, has necessitated new regulations, provisions and best practices.
Further, as the workplace continues to change and evolve (i.e. the rising numbers of virtual workers and full-time independent contractors, offshoring practices, etc.), the law will need to be updated to reflect these new workforce realities. FMLA laws will likely look considerable different ten, fifteen, or twenty years from today. One thing is for certain however: Human Resources professionals and in-house counsel must keep an eye on any probable changes to FMLA law on the horizon to remain in compliance.
Compliance concerns drive many investment decision in IT hardware and software, but often off-the-shelf solutions are incapable of being tailored to the unique needs of your business, as well as the ever-changing regulatory landscape. As you can see, revisions to the FMLA law will require continuous adjustments to your process. Is your firm ready for the next wave of amendments to the FMLA law?
Qcera, as a firm, prides itself on its capability to tailor its modular solutions to a client’s leave of absence requirements and provide both deployment and ongoing support to your firm’s Human Resource staff. No longer do you have to struggle with multiple systems and vendors that necessitate consulting fees with every new Department of Labor announcement. Our solution combines best practices in absence management with an elegant and robust application and complemented by ongoing and training support. Our sole business is making sure that you can easily and effectively manage this fundamental Human Resources function, and to ensure that you have the tools to adapt to changes to the FMLA law in the future. Contact us today to learn more, and receive a free demonstration.