This week marks the 15 year anniversary of the 1993 Family and Medical Leave Act (FMLA), which was signed into law on February 5, 1993. FMLA requires employers of 50 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave each year for the birth and care of a newborn child, for placement with the employee of a child for adoption or foster care, or for the serious illness of the employee or of the employee’s child, spouse, or parent. D.O.L.'s FMLA Compliance Assistance page offers more detail and resources.
On January 28, the FMLA had its first major expansion when President Bush signed the 2008 National Defense Authorization Act into law, which, among other provisions, extends FMLA to family members of military personnel who are recovering from illness or injury. While regulations are still pending, the Department of Labor (DOL) states that the amendment to the FMLA allows a "spouse, son, daughter, parent, or next of kin" to take up to 26 weeks of work 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."
More changes in the works
In addition, more regulatory changes to FMLA are forthcoming. DOL will be issuing recommendations for additional amendments on February 11. According to Human Resources Executive, it is expected that DOL recommendations might address the difficulties posed by intermittent leave and might strengthen the definition of "serious medical condition." It is also anticipated that employees will be required to request FMLA-related leave two days prior to taking time off, a change from the current system in which employees can be absent for two days before requesting the leave be designated as FMLA leave.
Once the new recommendations are issued, final regulations will need to be approved, a process that could take 90 days or longer. Once approved, Congress has up to 60-days to review the rules. As the HRE article points out, "That means a new Congress next year could reject what the Congress this year approved."
At least one of the authors of the original FMLA legislation would like to see even more changes. Senator Christopher Dodd wants to strengthen the law to give Americans 8 weeks paid leave after having a child or during a family illness. Dodd contends that millions of workers do not take advantage of FMLA because they can't afford time off without pay. He also notes that 128 countries provide paid and job-protected maternity leave, with an average paid leave of sixteen weeks. Dodd has made several prior attempts to expand FMLA to include paid leave but has met with little success. Time will tell whether a Congressional party shift and change in administration would create a more favorable climate for such a proposal.
Employer advice from legal experts
Meanwhile, legal experts are advising that employers act expeditiously to amend their FMLA policies and practices to reflect the changes. And the employment law firm Littler Mendelson also reminds employers that in addition to these changes, employers may face other obligations under state laws:
"Employers should be aware that time off under this new legislation may be in addition to family leave available under state law. Several states have now passed legislation providing their residents with unpaid family military leave. These states include California, Illinois, Indiana, Maine, Minnesota, Nebraska, and New York. Other states, including Hawaii and Wisconsin, have family military leave legislation currently pending before their respective state legislatures. Employers also should be aware of applicable state statutes and modify their leave policies as appropriate. The family military leave laws do not purport to affect an employee's right to any other legally-mandated leave or employee benefit, including the additional leave benefits now available to employees under the Amendment."