Michigan FMLA Changes

Michigan employers need to be aware of changes to the federal FMLA regulations.

As of April 11, 2008, Michigan employers will face several changes in the Family and Medical Leave Act (FMLA). These changes were proposed in the new FMLA regulations on February 11, 2008, by the U. S. Department of Labor. The intervening weeks between proposal and effect allow employers to review the changes and to post their comments.

To post comments, click this link and type in “Family and Medical Leave Act”, and include the quotes around the keywords. All posts will be viewable by the public.

Changes in the FMLA include adjustments in how paid time off (PTO) is used when an employee is on FMLA leave. Employers are not required to pay for FMLA leave, but they can permit workers to utilize accrued sick time along with the FMLA leave.

Effective, April 11, 2008, workers will also be able to use accrued vacation time and accrued personal leave while on FMLA leave, under the new Department of Labor regulations.

Rene is an example. She has a total of ten weeks of PTO, but only two weeks of them are sick leave. Under current regulations, she could only charge those two weeks to FMLA. The other 10 weeks would be unpaid. Under the new regulations, Rene will be able to use all of her PTO, including the 3 weeks of personal leave and the 5 weeks of vacation time. In effect, Rene will substitute 10 weeks of PTO for her FMLA leave. Using PTO in this way is referred to as “substitution of paid leave”.

A minor amendment to the FMLA deals with FMLA leave and absences. The old FMLA didn’t charge FMLA to a worker’s absences, so some of these employees were eligible and earned rewards for “perfect attendance”, which often included monetary bonuses. Supervisors and coworkers felt it unfair to grant “perfect attendance” to someone who had taken 12 weeks of leave.

The new FMLA regulations will count FMLA toward an employee’s absences in the same manner any other leave would be counted. Workers who take FMLA leave, then, will not be eligible for “perfect attendance” accolades.

More Michigan FMLA Changes

The definition and certification of “serious medical condition” under the FMLA (Family and Medical Leave Act) will see some changes on April 11, 2008 under new regulations issued by the U.S. Department of Labor.

Currently, the regulations list several definitions of “serious medical condition” and how certification should be obtained. On February 11, 2008, the U.S. Department of Labor proposed changes to the FMLA many of which address these definitions and the certification process.

The new regulations will keep six of the definitions and clarify a couple of terms. For example, “serious medical condition” can be defined as incapacitation of the employee for 3 consecutive days and “two visits to the healthcare provider”. Unfortunately, the “two visits” are not defined within a certain time frame. According to the new regulations, the U. S. Department of Labor will define the “two visits to a healthcare provider” as occurring within 30 days of the period of incapacitation.

Companies normally require that a healthcare provider certify the “serious medical condition” before granting FMLA leave. This practice is allowed by the U.S. Department of Labor as a method to prevent abuse of the leave. Second and even third opinions can be required, too, but the employer must pay for these additional opinions.

Other topics will be addressed in the new regulations, including the “Ragsdale decision on employer penalties, Light Duty and FMLA and permission for employers to deny “Perfect Attendance Awards” to workers on FMLA leave.

Regarding the FMLA regulations and the proposed changes, Victoria Lipnic of the U. S. Department of Labor said, “It’s time to update these regulations — to reflect court decisions, clear up ambiguities and address issues that weren’t contemplated when the regulations were first issued in 1995.”

Ms. Lipnic continued to say, “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.”

Employers will have from now until April 11, 2008, to review and comment on the new regulations. On that date, the regulations will be published and become law.