On Jan. 28, 2008, President Bush signed into law the first significant amendment to theAct of 1993. Because of the significant changes to this very important and complex statute, we have provided answers below to the most frequently asked questions regarding the changes to the .
The new FMLA law
Q. What new types of leave does the amended FMLA now provide?
A. The FMLA has been amended to allow two new types of leave, both associated with military duty.
Active-duty leave allows an employee who is a spouse, child or parent of an active-duty (or soon-to-be active-duty) service member to take up to 12 weeks of leave due to a “qualifying exigency.” The leave may be taken all at once or intermittently, may run concurrently with vacation or paid time off and may be unpaid. The U.S. Labor Department is currently in the process of defining what constitutes a “qualifying exigency.”
Caregiver leave covers an eligible employee who requires time off to care for a spouse, child, parent, or next of kin “nearest blood relative” who is a covered service member injured in the line of duty. The employee is entitled to take leave of up to 26 weeks within a single (i.e., nonrecurring) 12-month period.
What's the effective date?
Q. When will the new provisions of the FMLA take effect?
A. The caregiver leave portion of the FMLA will be enforced immediately by the Labor Department. Therefore, companies that are covered by the FMLA must be prepared immediately to grant such leave to their employees.
Conversely, key provisions of the active-duty leave amendments require the Labor Department to issue defining regulations. Until it issues final regulations, the department does not intend to enforce the active-duty leave provisions. Nevertheless, the agency has “requested” that employers make every effort to comply with the new leave provisions.
Notice requirements for military
Q. How do the amendments affect our responsibility to make employees aware of the change?
A. The amendments themselves do not affect the duty of an employer to post its in a conspicuous area or list it in its entirety in the company handbook. Therefore, it’s expected that the Labor Department will require companies to update their policies as quickly as possible to incorporate the amendments into the act.
It’s important for the company to update its FMLA policy to include the new rights available to employees and to post the amended policy as quickly as possible. (You can download a copy of the Labor Department’s supplemental FMLA military family leave poster at www.theHRSpecialist.com/FMLAmilitaryposter.)
As a stopgap measure, the company can issue a short memo informing employees of amendments to the company’s FMLA policy and direct them to the common area where the entire policy is posted. (It’s fine to include such a notice with employees’ paychecks.)
What is certain is that employers will be expected to inform their workers of the changes to the FMLA in such a way to put them on notice of what their rights now are under the act. Failure to move quickly and decisively on this issue will subject an employer to liability that otherwise is easily avoidable.
Q. How do the amendments to the FMLA granting leave rights for families of service members affect the recently passed Indiana Military Family Leave Act and its requirements?
A. The Indiana Military Family Leave Act (MFLA) works in conjunction with the new amendments to the FMLA to provide what is, in most cases, overlapping coverage. Most employees eligible for the FMLA also will be eligible under Indiana’s law and thus receive the greater benefits afforded under the MFLA.
However, whereas the MFLA grants leave rights for grandparents but not children of active-duty service members, the FMLA is exactly the opposite. Therefore, grandparents not considered covered employees for purposes of the FMLA will be entitled to 10 days of family leave under Indiana’s law in the event that a grandparent wishes to take time off associated with the departure or return of an active-duty soldier.
Of course, if there are any direct inconsistencies between the two laws, the federal law will apply.
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