DOL's Clarification of "Son and Daughter" FMLA Definition Broadens Category of Employees Who May Take Leave

Posted on June 23, 2010 by Ilyse Schuman

Two women with childThe Department of Labor’s Wage and Hour Division (WHD) has issued an administrative interpretation providing guidance on who may take time off under the Family and Medical Leave Act (FMLA) to care for a sick, newly born or adopted child when that person has no legal or biological attachment to that child. The FMLA typically permits employees to take up to 12 weeks of unpaid leave during any 12-month period for the aforementioned reasons, among others. The regulations extend these FMLA rights to those who stand in loco parentis – “in the situation of a lawful parent by assuming the obligations incident to the parental relation.” The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the WHD, clarifies that an individual falling into this category is not required to establish that he or she provides both day-to-day care and financial support to the child, thus covering those who fall outside of the “traditional” parent category.

The interpretation explains that such individuals include a grandparent who takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; an aunt or uncle who assumes responsibility for raising a child after the death of the child’s parents; a same-sex spouse or partner who shares equally in the raising of a child with the child’s biological or adoptive parent; and a step-parent to the spouse’s biological or adoptive child.

If an employer has questions about whether the individual’s relationship with the child qualifies him or her for FMLA leave, it may require the employee to provide “reasonable documentation” or a statement of the family relationship. “A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”

In a statement, Labor Secretary Hilda Solis commented:

No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA.

Photo credit:  Stratesigns, Inc.
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Bill Would Change FMLA Hours of Service Requirements for Airline Employees

Posted on July 14, 2009 by Jay Sumner

Last week Senator Patty Murray (D-WA) introduced legislation that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Technical Corrections Act (S. 1422) would change the hours of service requirements to enable more airline industry employees to take FMLA leave. On February 9 of this year, the House passed by voice vote a nearly identical bill (H.R. 912).

As the law currently stands, employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12 months, which amounts to at least 60 percent of a standard 40-hour workweek. This method of calculation impacts employees in the airline industry, whose time spent on the job between flights or on mandatory standby does not count as “hours worked” under the Fair Labor Standards Act (FLSA), which the courts use to determine the requisite number of hours for FMLA purposes. This bill would clarify that the hours pilots or flight attendants work or for which they are paid – not just those spent in flight – count toward the minimum hours calculation. Specifically, an airline flight crew member would be eligible to take FMLA leave if he or she had worked or been paid for 60 percent of the applicable monthly guarantee, or the equivalent amount annualized over the preceding 12-month period, and if he or she had worked or been paid for at least 504 hours during the previous 12-month period.

This bill, which is co-sponsored by Senators Chris Dodd (D-CT), Kit Bond (R-MO), Susan Collins (R-ME), Lisa Murkowski (R-AK), and Jim Webb (D-VA), has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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DOL Clarifies Employee Notification Procedures under the FMLA

Posted on May 12, 2009 by Jay Sumner

The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued an opinion letter (FMLA2009-1-A) clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances. In a previous opinion letter dated January 15, 1999 (FMLA-101) the DOL had concluded that employers’ call-in/no show policies and related disciplinary measures could not be applied so long as the employee provided notice within two business days that the leave was FMLA-related, regardless of whether such notice could have been provided sooner. To the extent that FMLA-101 created a blanket “two-day rule” for providing FMLA notice, the WHD is rescinding it.

The FMLA requires employees to provide, where possible, notice of the need for most types of FMLA leave 30 days before leave is to begin. If 30 days advance notice is not possible, employees are to provide “such notice as is practicable.” 29 U.S.C. § 2612(e). The DOL’s 1995 FMLA regulations had clarified that “such notice as is practicable” ordinarily means “at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.” Opinion letter FMLA-101 had applied this regulatory definition to a contemplated policy that would require employees taking intermittent FMLA leave to report their need for leave within one hour after the start of their shift unless circumstances beyond their control prevented such notice. In this opinion letter, the DOL concluded that the policy would violate the FMLA, because it imposed a more stringent notification policy than the “within one or two business days” described in the FMLA regulations. Many employers interpreted this opinion letter as prohibiting the application of any call-in policy that did not permit employees to wait up to two business days before providing FMLA notice.

The FMLA was amended for the first time in its 15-year history in January 2008. On November 17, 2008, the DOL published final revised regulations that implemented these statutory changes and addressed other interpretive issues. The DOL’s comments accompanying the new regulations, which became effective January 16, 2009, discuss FMLA-101, noting that the “one to two business days” time frame set forth in the 1995 regulations had been misinterpreted as permitting “employees two business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” 73 Fed. Reg. 67,934, 68,003. The DOL recognized that certain employer attendance/call-in procedures “are critical to an employer’s ability to ensure appropriate staffing levels.” Id. at 68, 006. To that end, the newly-released opinion letter echoes the final rule’s statement that “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.”
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Act Would Eliminate Hours of Service Requirement Under the FMLA

Posted on January 20, 2009 by Jay Sumner

A bill introduced in the House seeks to amend the Family and Medical Leave Act (FMLA) by abolishing the hours of service requirement for benefits. The Family Fairness Act of 2009 (H.R. 389), introduced by Rep. Tammy Baldwin (D-Wisc) would eliminate the stipulation that employees must have worked at least 1,250 hours during the previous 12-month period to qualify for FMLA benefits. An employee would still be required to have worked for the employer for at least 12 months to be eligible for FMLA leave. The practical effect of this bill is the expansion of the pool of employees – especially those working part-time – covered under the FMLA.

This bill was referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration.
 

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FMLA Regulations Take Effect Tomorrow

Posted on January 15, 2009 by Governmental Affairs Team

Regulations governing the first changes to the Family and Medical Leave Act (FMLA) in 15 years take effect Friday, January 16. The FMLA amendments, which provide for military caregiver leave and qualifying exigency leave, were introduced as part of the fiscal year 2008 Defense Authorization Act. The final rule governing how these amendments impact the FMLA was issued last November.

In addition to defining what constitutes a “military exigency,” the regulations clarify, among other things, who is eligible to take military leave, and provide guidance on how to process leave requests. Employers are encouraged to review and update their leave policies to ensure compliance with the new regulations. To aid employers, the DOL has posted a revised FMLA poster and other compliance materials on its website.

For more detailed information on these FMLA regulations and how they will impact employers, see Littler’s ASAPs: Relief in Sight? DOL Issues Final FMLA Regulations by Rod. M. Fliegel, Peter A. Susser, Gina M. Chang, Alexis C. Knapp, and Jeffrey J. Sun, and Department of Labor Clarifies FMLA Amendments Related to Servicemember Care and Other Military-Related Exigencies by David M. Jaffe, Todd K. Boyer, and Michele Z. Stevenson.
 
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DOL Revises FMLA Compliance Materials

Posted on December 23, 2008 by Governmental Affairs Team

The Department of Labor has posted on its website its updated poster incorporating the recent military family leave amendments and other changes to the Family and Medical Leave Act (FMLA), as reflected in the recently-published final FMLA rule. Employers covered by the FMLA are required to post notice of an employee’s FMLA rights in a conspicuous area in the workplace.

The DOL has also posted a number of new and revised optional FMLA forms. These forms include the FMLA Certification of Health Care Provider for Employee's Serious Health Condition (WH-380E); FMLA Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380F); FMLA Notice of Eligibility and Rights and Responsibilities (WH-381); FMLA Designation Notice (WH-382); Certification of Qualifying Exigency For Military Family Leave (WH-384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

These forms expire on December 31, 2011.
 

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Labor Department Issues Final Revised FMLA Rules

Posted on December 9, 2008 by Governmental Affairs Team

On November 17, 2008, the Department of Labor issued final revised regulations for the Family and Medical Leave Act.  Set to take effect January 16, 2009, these 750 pages of revised regulations represent the first update of the FMLA in more than 13 years.

Notably, these regulations expand the FMLA in two significant ways for military families. First, they provide up to 26 workweeks of leave in a 12-month period for family members caring for covered service members with serious injuries or illness incurred in the line of active duty. Second, they allow families of National Guard and Reserve personnel on active duty to take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

The revised regulations also address the following issues:

  • The Ragsdale Decision/Penalties
  • Waiver of Rights
  • Serious Health Condition
  • Light Duty
  • Perfect Attendance Awards
  • Employer Notice Obligations
  • Employee Notice
  • Medical Certification Process (Content and Clarification)

For more information regarding the implications of these revised regulations and how to remain in compliance with the FMLA, see Littler ASAPs Relief in Sight? DOL Issues Final FMLA Regulations, and Department of Labor Clarifies FMLA Amendments Related to Servicemember Care and Other Military-Related Exigencies.
 

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