When Duty Calls

Military-related provisions are added to Family and Medical Leave Act.

If your waste company has 50 or more employees, then you need to keep reading.

On Nov. 17, 2008, the U.S. Department of Labor's Wage and Hour Division published the first revision to the Family and Medical Leave Act (FMLA) regulations in the law's 15-year history. Besides addressing notice requirements, medical certification and defining "continuing treatment" of a serious health condition, among other revisions, the final regulations also implement the new military leave provisions signed into law by President Bush last year. The regulations went into effect on Jan. 16.

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take up to 12 weeks of unpaid, job-protected leave per year for any of the following reasons:

  • the birth, adoption or care of a newborn child;

  • the placement of a child for adoption or foster care with the employee;

  • the care of an immediate family member (spouse, child or parent) coping with a serious health condition;

  • the employee is unable to work because of a serious health condition; and

  • "qualifying exigencies" arising from fact that a spouse, parent or child is on, or has been called to, active duty by the National Guard or Reserves.

The new military leave provisions allow eligible employees to take up to 26 weeks of unpaid leave in a single 12-month period to care for a family member with a serious illness or injury incurred in the line of duty. The definition of "family member" under the military-leave amendments extends beyond spouses, children and parents to also include aunts, uncles, grandparents and cousins.

Employees are eligible for leave if they have worked at least 1,250 hours over 12 (not necessarily consecutive) months prior to the start of the FMLA leave. The law also requires that their group health benefits be maintained during the leave.

Among the dramatic changes in the new regulations, workers who claim leave based on a chronic condition must now prove they visit a doctor at least twice a year for treatment of the condition. In addition, employees returning to the workplace may have to submit medical evaluations substantiating their "fitness for duty" at their job. Notably, employers may now consider FMLA leave in awarding bonuses and other recognition. If an employee fails to achieve a performance objective — attendance or productivity — due to FMLA leave, the worker may be denied the reward.

Company owners and their division and department managers have complained for years about employee abuse of intermittent leave. Meanwhile, workers say that employers are not only stingy about granting FMLA leave, but also retaliate against those who take it.

Employment law experts predict a long settling-in period before employers and workers figure out how the new rules will play out. Trouble is, where there's confusion, there's litigation.

Barry Shanoff
Legal Editor
Rockville, Md.