The Family and Medical Leave Act (FMLA) will undergo several changes on or about April 11, 2008 that concern all Arizona employers. These changes were proposed on February 11, 2008, by the U. S. Department of Labor. During the interim, employers can review the changes and make comments on them.
The U. S. Department of Labor is accepting comments online until April. All comments posted on the website are viewable to the public, so employers need to be aware of the content of their post.
To add a comment, click this link and type in “Family and Medical Leave Act”. Be sure to put quotes around the keywords.
The new FMLA will amend how paid leave is used while on FMLA leave in Arizona. The term “substitution of paid leave” refers to an employee using paid time off as past of FMLA leave. Currently, employees can use their paid sick leave. Under the new regulations, workers will also be able to use accrued personal leave and accrued vacation time.
For example, Betty has developed a long term illness and needs to take time off. Currently she has 2 weeks of sick leave, 3 weeks of personal leave and 5 weeks of vacation time for a total of 10 weeks of PTO. When the new FMLA goes into effect, she can use all ten weeks of PTO and only two weeks of FMLA will be unpaid leave.
Until the new regulations go into effect, however, Betty could only use her two weeks of sick time toward FMLA. The rest – 10 weeks of FMLA — would be unpaid.
The new regulations will also require FMLA leave to be counted toward an employee’s absences. Prior to the changes, employees on FMLA weren’t considered “absent”. This policy meant that even when an employee took off 12 weeks for FMLA, he or she was still eligible for “perfect attendance” bonuses and awards. Coworkers and supervisors complained that the policy was unfair to other workers.
One change to the regulations corrects what many saw as an injustice under the old plan. Although workers on FMLA leave continue to accrue seniority, they will no longer be eligible for “perfect attendance” rewards.
The FMLA (Family and Medical Leave Act) provides workers with up to 12 weeks of job-protected, unpaid leave to care for themselves or a family member (child, spouse or parent) with a “serious medical condition.”
Recently the U. S. Department of Labor proposed changes to the FMLA, several of which focused on the definition of “serious medical condition” and the process of obtaining its certification.
The FMLA regulations include several ways to classify a “serious medical condition”. The new regulations will keep six of the definitions and clarify a couple of terms. One definition requires the employee to be incapacitated for three consecutive days and visit the healthcare provider two times. “Two times,” however was not defined as any specific time period. Under the new regulations, the U. S. Department of Labor will define “two visits to a healthcare provider” as two times within 30 days of the incapacitation.
Certification of the “serious medical condition” by a healthcare provider is usually required. The U. S. Department of Labor permits employers to do this to deter abuse of the leave. The employer can also require a second or even third opinion, but is responsible for paying for those visits.
In addition to “serious medical condition” the new regulations include changes regarding the employee’s right to settle FMLA suits out of court, the certification process of “fitness-for-duty” and the substitution of paid leave for qualified employees.
Victoria Lipnic of the U. S. Department of Labor made the following statement. “This proposal is the result of a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department’s experience in administering and enforcing the law.”
Though the regulations were proposed on February 11, 2008, they do not go into effect until April 11, 2008. Until that time, employers have the opportunity to review the changes and post comments on them.
Once the new regulations are published, they become law, and all employers are required to comply.
