President Obama Signs Expansion of FMLA Leave for Military Families
Earlier this week, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA), a federal law that is enacted each fiscal year to specify the budget and expenditures of the United States Department of Defense. This year, the NDAA contains two expansions of the exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA):
- Caregiver Leave: Employees could previously take up to 26 weeks of unpaid leave to care for a family member (spouse, child, parent or next of kin) who is an active service member currently undergoing treatment for a serious injury sustained on active duty; that leave has been expanded to allow leave to care for a veteran family member undergoing medical treatment, recuperation or therapy for a serious injury or illness that was sustained any time during the five years preceding the treatment.
- Exigency Leave: Employees could previously take up to 12 weeks of unpaid leave for qualifying exigencies relating to a reservist family member's call to active service; that leave has now been expanded to provide exigency leave benefits to the family of a member of any armed service on active duty.
These expansions became immediately effective when the law was signed.
For more information on the military leave provisions of FMLA, check out this Fact Sheet on FMLA Military Family Leave Entitlements from the Department of Labor Wage and Hour Division. While the fact sheet doesn't reflect these recent expansions, it does provide valuable information, including who is a qualifying family member and what is a qualifying exigency.
Oregon BOLI: No Changes to OFLA Regulations (yet...)
As previously reported here at the World of Work, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009. Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations. FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.
Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees). However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws. The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.) Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted. In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws.
Where does that leave Oregon employers that are covered by both OFLA and FMLA? The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees. The World of Work will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes.
Reminder: New FMLA and Military Leave Regulations Take Effect Today
In case you haven’t heard, new Family and Medical Leave Act (FMLA) regulations take effect today, Friday, January 16. Some highlights of the new regulations include:
- Regulations covering the recently instituted military family leave laws
- Expanded FMLA general notification requirements
- New individual eligibility notification and leave designation requirements
- New forms for eligibility notification, leave designation, and health care provider and military family leave certifications
- New fitness-for-duty certification requirements
- New leave tracking and notification requirements
- New certification and recertification requirements and procedures
There are too many changes to explain in detail in this email message, but we have you covered: Follow this link to download our detailed memorandum on the new regulations. Follow this link to download the new FMLA forms and poster. Or if you're really into reading lengthy goverment regulations (and who isn't, really?) you can download the new FMLA regulations here.
New FMLA Forms and Poster Now Available For Download
As previously reported in the World of Work, new Family and Medical Leave Act (FMLA) regulations will take effect January 16, 2009. The DOL has now published six new optional forms contemplated by the new regulations, and as promised, the World of Work has them for you right here (just click on the form number to download):
- Employee’s Serious Health Condition (WH-380E)
- Family Member’s Serious Health Condition (WH-380F)
- Notice of Eligibility and Rights and Responsibilities form (WH-381)
- Designation Notice to Employee of FMLA Leave (WH-382)
- Certification of Qualifying Exigency for Military Family Leave (WH-384)
- Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)
And as if that's not enough, there's a new mandatory FMLA poster to put up in your workplace, which you can download here: 2009 FMLA Poster. As you know, every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions - this new poster will meet those requirements.
Employee Free Choice Act Tops List of Anticipated L&E Legislation
In case you missed it, Barack Obama will be the next President of the United States! And both houses of Congress will be controlled by Democratic majorities. Wondering what this will mean for labor and employment law? So are we! But we've gone a step further and made some educated guesses on what to watch out for.
- The Employee Free Choice Act (EFCA). The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates. The World of Work will be watching this one very closely.
- The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). No, it's not an Aretha Franklin song. The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
- The Paycheck Fairness Act and the Equal Remedies Act. These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
- The Civil Rights Act of 2008. The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
- The Employment Non-Discrimination Act (ENDA). ENDA would amend Title VII to add sexual orientation as a protected class.
- The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
- Minimum wage. President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
- Family and Medical Leave Act (FMLA). President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).
The World of Work will be watching this legislation closely and will bring you updates as they occur. For more information now, check out this update on pending legislation from Stoel Rives.
DOL Issues Final FMLA Regulations
Today the Department of Labor published its Final Regulations Implementing the Family and Medical Leave Act (FMLA). They go into effect on January 16, 2009 (60 days after publication). Click here to download the final FMLA regulations. (Warning! The document is 762 pages long! However, much of that is a handy explanation of the changes and the comments the DOL received.)
The final regulations address many aspects of FMLA, the federal law that provides eligible employees the right to take unpaid leave for certain absences, such as: the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of the employee’s own serious health condition. The final regulations also address new military family leave entitlements enacted as part of the National Defense Authorization Act, which provides leave rights to employees who provide care for covered servicemembers with a serious injury or illness.
Highlights of the final regulations include:
- Incorporation of new military family leave requirements into the regulations, with specific guidance on administering military leave
- Clarification on administering intermittent leave, including an explanation of when an employee may be transferred during intermittent or reduced schedule leave
- Clarification on employee eligibility following breaks in employment such as extended leaves
- Clarification on what constitutes a "serious health condition," including revised definitions of "incapacity" and "continuing treatment"
- Clearer guidelines for administering pregnancy and childbirth leaves
- Consolidated guidelines on adoption leave
- Clarification of how to count holidays in cases where an employee takes leave in increments of less than a full workweek.
- Clarification on administering leave to care for a parent
- A new requirement that when an employee gives less than 30 days' notice of a foreseeable leave, the employee must explain the reason for failing to give 30 days' notice
- An explanation of how much information an employer can obtain in the medical certification to substantiate the existence of a serious health condition and the employee’s need for leave due to the condition
There are many more minor changes, too many to list in a single blog post. To get the full picture, download the final regulations.
