labor lawAdivision of labor law center

On February 11, 2008, the U. S. Department of Labor proposed new FMLA (Family and Medical Leave Act) regulations.

Theses regulations include many changes for employers in Oklahoma and throughout the nation. Until April 11, 2008, when the regulations go into effect, employers have the option to make comments on them.

To make comments, employers can click this link. Once on the site, enter the words “Family and Medical Leave Act” encased in quotes. Before adding comments, employers need to be aware that this site is public.

“Substitution of paid leave” is one of the changes in the new regulations. The law doesn’t require employers to pay workers who are on FMLA leave, but it does allow employees to take FMLA and any accrued sick leave at the same time. This substitution of paid leave includes all PTO (paid time off); including vacation time and personal leave. To take PTO, however, the worker must meet all the company’s requirements regarding leave usage.

To illustrate, consider James who has a total of 10 weeks paid time off. Two weeks are sick time, three are personal and the remaining five are vacation. Before the implementation of the new FMLA, James would only be able to use the two weeks of sick time while on FMLA leave. When the new regulations go into effect, James can utilize all 10 weeks of accrued leave.

Once his PTO is used, James will then be entitled to 2 weeks of unpaid FMLA leave. Thus, James has effectively substituted PTO for part of his FMLA leave.

Under the new FMLA regulations, the employer is permitted to require workers to use up all PTO before charging time to FMLA leave.

Another change in the new FMLA regulations changes a policy regarding employee attendance. Previously, FMLA time did not count toward a worker’s absence, which meant an employee who took 12 weeks of FMLA could still qualify for a “perfect attendance” award, often earning bonuses, too. With the new regulations, FMLA absences will be considered the same as any non-FMLA absences for award purposes, so workers will no longer be eligible for perfect attendance awards.

In other changes proposed on February 11, 2008, employers will have close to two months to comment on these changes. On April 11, 2008, the regulations will be in effect and in force.

The U. S. Department of Labor’s Victoria Lipnic made the following statement. “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.”

A majority of the new regulations address the definition and medical certification of the worker’s “serious health condition”.

When a worker has a “serious medical condition”, FMLA allows him or her to take up to 12 weeks of unpaid leave per 12 month period. In addition to using FMLA for him or herself, the leave can be taken to care for a family member with a “serious health condition.” According to FMLA, family member is defined as a parent, spouse or child.

To be eligible for FMLA leave, employers usually require that a healthcare practitioner certify the “serious medical condition.” The U. S. Department of Labor supports this practice to avoid employee’s abusing the leave.

Even when certification is provided, employers can, in some cases, request a second or third opinion. These visits must be paid for by the employer.

The new rules retain six of the definition for a “serious medical condition” and provide additional clarification of 2 terms. One of these six definitions requires that the “serious medical condition” involve greater than 3 days of incapacitation, and “two visits to a health provider”.

The Tenth Circuit court ruled that the visits must occur during the incapacitation period. U. S. Department of Labor, however, will amend the rule such that the two visits are required within 30 days of the incapacity.

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1. Posted by: MJ

   IF AN EMPLOYEE IS IN-ACTIVE EMPLOYEMENT STATUS-OFF ON TTD WORKMAN’S COMPENSATION. IS THE EMPLOYER TO NOTIFY HIM OF FMLA? IS IT LEGAL TO BE BOTH TTD & ON FMLA? WHO IS RESPONSIBLE FOR PAYING FOR EMPLOYEE BENEFITS AFTER THE 12 WEEKS EXPIRE?

2. Posted by: Amelia

   Hi MJ! Yes, in most cases an employee on TTD or Workers’ Comp is also on FMLA. This is very, very common. The federal Family and Medical Leave Act entitles employees to 12 weeks of unpaid, job protected leave each year. It does not entitle the employee to 12 weeks of FMLA plus weeks of TDD or Workers’ Comp. So there is nothing unusual about this.
   In order for TTD or Workers’ Comp to be counted as FMLA, the employer must notify the employee in writing at the beginning of the leave, that it is being counted as FMLA. Most companies routinely do so with TTD or Workers’ Comp.
   As far as the second question — the employee can be terminated after the 12 weeks of FMLA expire. So the employee would have to pay his or her own benefits, as an unemployed individual. HTH, and thanks for reading the blogs!~ Amelia