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2009 Changes to the “Family Medical Leave Act”

February 20, 2009

What is the Family Medical Leave Act and who qualifies?
The Family Medical Leave Act (“FMLA”) was enacted to protect the jobs of employees in need of time off from work to assist family members.  More specifically, it gives employees the right to take up to 12 weeks of unpaid, job protected leave in any 12 month period to care for a newborn or newly adopted child or a seriously ill parent, child or spouse.  The employer must hold the employee’s job or provide a similar job upon his/her return, continue group health benefits, and continue the accrued benefits earned by the employee prior to the leave (e.g., vacation time, seniority).

To qualify, the employee must work for an employer that has 50 or more employees, and the employee must have worked for the employer for at least 12 months and 1,250 hours in the year preceding the leave.

What are the 2009 changes and how do they apply?
On January 16, 2009, the FMLA was amended and new regulations added.  The most significant changes/amendments include more relaxed employee eligibility requirements, more stringent employer/employee notice requirements and medical certifications, and more benefits for military personnel and their families.

Under the old regulations, the 12 month period for employee qualification had to be consecutive.  That is no longer so.  Under the new regulations, employees who, for example, leave their employment or are laid off and then return to the same employer at a later date, may add the time periods together to meet the 12 month requirement, as long as the accumulated time occurs within seven (7) years.  The seven (7) year rule, however, does not apply to military personnel.

Under the new regulations, the notice requirements and medical certification rules have changed.  Employees must now give 30 days notice of an expected need for family leave, and as much notice as practicable, following the employer’s standard call in procedures, in the event of an unexpected need for family leave.  The employer also now has five (5) days to require medical certification of the need for leave, which the employee must provide within 15 days.  If the certification is incomplete or insufficient, the employer can deny the leave, and the employee then has an additional seven (7) days to cure the deficiency.  The only exception to this new regulation is for military issues, where an employer is required to accept documents such as travel orders as sufficient.

Finally, under the new regulations, the FMLA has been extended to give caregivers of armed service members, such as a spouse, son, daughter, parent or next of kin, up to 26 weeks of unpaid leave during a 12 month period to care for an injured service member.  In addition, an employee whose spouse, child or parent is suddenly called into active duty is now entitled to 12 weeks of unpaid, job protected leave.

The foregoing is meant only as an overview.  To determine your FMLA eligibility under the revised and new regulations, we recommend you consult a legal expert.