3/20/2008

Recent Changes to the FMLA

On January 28, 2008, the President signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA) amending the Family and Medical Leave Act of 1993 (FMLA). The changes to the FMLA may require amendments to plan documents - this will depend on how documents that incorporate the FMLA are drafted. The recent changes, however, most certainly will affect FMLA procedures by covered employers.

Changes to the FMLA under the NDAA

The NDAA newly permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

In addition, a new entitlement to the traditional FMLA 12 weeks of leave was made available for a "qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation."

Click here to see the changes made to the FMLA by the NDAA.

Changes to Plan Documents

If your Plan Documents incorporate the FMLA and specifically specify that FMLA leave is the traditional "12 workweeks" of leave, the documents will need to be updated to reflect the new 26 week leave entitlement. In addition, some documents may specifically list the qualifying reasons for a 12 week leave - in this case the document should also include the new 12 week entitlement qualifying reason described above. As an alternative, the documents could be amended to incorporate FMLA leave in general without specifying the length of the leave or qualifying reason for the entitlement to leave.

Documents drafted in general terms that incorporate all FMLA type leave would not require changes. ftwilliam.com's Cafeteria Plan Document, Premium Only Cafeteria Basic Plan Document and Health Reimbursement Basic Plan Document describe FMLA requirements in such general terms. The new law does not require any modification to ftwilliam.com documents.

Changes to FMLA procedures

Covered employers will need to revise their current FMLA procedures to ensure they are aware of the new leave entitlements. Although the new 12 week entitlement described above will be clarified in regulations in the future, the Department of Labor "encourages employers to provide this type of leave to qualifying employees" in the interim. See the original DOL announcement here.

In addition, covered employers should update their FMLA posters. The DOL has provided employers with an insert to update their FMLA poster. The new poster is available here.

If you have any questions please feel free to contact us at support@ftwilliam.com or call 800.596.0714.

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