Congressional actions often grab the headlines, but recent executive branch moves have subtly expanded those who qualify for leave.
First, the U.S. Department of Labor announced it would construe the definition of “son or daughter” very broadly. Specifically, employees (married or not, in a same-sex or opposite-sex relationship) who act in loco parentis are eligible to take time off to care for a child if the employee is responsible for the child’s day-to-day care and financially supports the child.
The DOL announcement clarified murky situations, such as when a stepmother stays home with a stepchild even though she does not have custody of the child. Similarly, same-sex couples who have parenting responsibilities are now clearly able to use FMLA leave to care for sick children.
Use our Special Report to review the FMLA's intricacies, familiarize yourself with the revised regulations and double-check your policies and employee handbook to ensure compliance with the law: FMLA Compliance Guide: Practical Advice on Managing Family and Medical Leave
Next, the Obama administration announced it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA).
DOMA effectively rewrote FMLA regulations by changing the definition of “marriage” under all federal laws to a union between a man and a woman.
The original FMLA regulations allowed marriage to be defined under state law.
Several lawsuits are challenging DOMA’s constitutionality. With the Department of Justice not defending the law, Republican leaders in the House of Representatives have hired attorneys to do so.
Complying with the FMLA is not, and has never been easy. Employers fare best when they understand their FMLA obligations and adopt clear leave policies for their organizations.
Get notification deadlines, FMLA forms, 10 compliance tips and more in FMLA Compliance Guide: Practical Advice on Managing Family and Medical Leave
How to Comply?
These changes will affect employers’ FMLA policies.
Advice: Check to make sure policies that spell out who is a son or daughter for FMLA purposes are aligned with the expanded definition the DOL now advocates. When revising those policies, change the marriage definition to match the states in which your employees live.
Make it a point to regularly review your FMLA policy to ensure it is up-to-date and complies with the latest laws, court decisions and Department of Labor regulations and interpretations. Because the law is complex, it is vital to consult with an experienced attorney when revising your policies.
The FMLA Compliance Guide will help you discover the seven issues you must cover – in writing – with an employee requesting FMLA leave, whether you can legally fire someone who is on FMLA leave, and an amazingly simple strategy that prevents employees from taking 24 weeks of back-to-back leave. The FMLA Compliance Guide is guaranteed to give you concrete answers to your most perplexing FMLA questions.
Here are just some of the things you’ll learn in the FMLA Compliance Guide:
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- An amazingly simple strategy that prevents employees from taking 24 weeks of back-to-back leave
- How to kick-start the 12-week FMLA meter
- The one situation where you can legally deny reinstatement after FMLA leave
- 4 tests to determine if several closely held companies will trigger compliance with the 50-employee minimum
- When you can expect to receive money back from an employee on FMLA leave
- A simple formula for determining if a part-time employee is eligible under the law
- 7 issues you must cover – in writing – with an employee requesting leave
- The 3 most important steps you can take to make sure your company is in compliance with the FMLA
- Whether or not you can legally fire someone who’s away on FMLA leave
- How to prove you acted in “good faith” and avoid paying a lot in liquidated damages
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Employees fired for missing work should expect to miss unemployment comp, too
- Series of 'minor' incidents <br/> can add up to hostile environment
- Once intermittent FMLA leave expires, reset eligibility clock and demand recertification
- No individual liability under Texas Whistleblower Act or Labor Code