In our last issue of NewsLink, we mentioned that leave for military families would become law as an amendment to FMLA.   As you are already aware, President Bush did sign the new amendment to law in January.  The new law provides for two new leave entitlements to eligible specified family members: 

(1) Up to 12 weeks of leave for qualifying exigencies arising out of a covered family member's active military duty, and
(2) Up to 26 weeks of leave in a single 12-month period to care for a covered servicemember recovering from a serious illness or injury.  Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave.

There has been some confusion regarding the effective date of these new provisions. The legislation didn’t actually include an effective date, which generally means that it became effective immediately after President Bush signed it into law.   Therefore, the advice is to take the most conservative approach and to assume that the new military family leave provisions were effective immediately and to implement compliance steps as soon as possible. 

With the recent change to FMLA and in an attempt to address some of the most common criticisms employers have about FMLA regulations, the DOL has recently issued proposed regulations to update FMLA.  The proposed regulations provide clarity on the law to reduce uncertainty by employers and employees.  The highlights of the new proposed regulations include provisions that:

• fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave;
• clarify the eligibility requirements for employees who are jointly employed;
• clarify when an employee’s inability to work overtime exhausts FMLA leave;
• establish that light duty doesn’t exhaust FMLA leave;
• allow employers to deny bonuses (such as perfect attendance or hours-worked awards) to employees who don’t qualify for them because they took FMLA leave;
• allow employers to require employees to comply with the terms and conditions of their paid leave policies to substitute paid leave for FMLA leave;
• allow employees and employers to voluntarily settle claims of past FMLA violations;
• provide very minimal clarification of the definition of a “serious health condition.”

In addition to proposing changes to the current FMLA regulations, it includes a description of the new military family leave provisions as well as a series of questions seeking public comment on subjects and issues that may be addressed in the final regulations.  A fact sheet provided by the DOL can be viewed on http://www.dol.gov/esa/regs/compliance/whd/whdfs_FMLA_NPRM.pdf.

The proposed regulations offer employers a degree of certainty and uniformity that was previously lacking.  The DOL anticipates that the next step in the rulemaking process, after a full consideration of the comments received in response to the discussion of the military family leave provisions, will be the issuance of final regulations.  So, stay tuned.  The result should be far less confusing than the current FMLA regulations.

Excerpts from HR HeroLine at M. Lee Smith Publishers LLC

View other news articles from March 2008