On February 11, 2008 the U.S. Department of Labor announced a series of proposed changes to the FMLA regulations that affect Minnesota employers, as well as those across the nation.
The regulations will go into effect after April 11, 2008. Until then, employers will be able to comment. To do so, click this link and put in the keywords “Family and Medical Leave Act.” Include the quotes. The public will be able to view all contact information.
One important new change announced by the U.S. Department of Labor involves what is called substitution of paid leave for FMLA. Among other things, the changes allow an employer to require workers to use all of their accrued paid time off, including sick time, personal leave, and vacation time, as part of their unpaid FMLA.
By law, FMLA is unpaid leave. The existing statute permits employees to take any of their accrued paid sick time concurrently with their FMLA. It also lets employers require that employees take the sick time concurrently. The process is called “substitution of paid leave.”
Under the proposed changes, employees would be allowed to use accrued vacation time, paid time off (PTO), and personal leave as part of FMLA on top of sick time. The employee, however, must qualify according to the employer’s standards for taking paid leave.
If an employee, Ron, for example, has accumulated 2 weeks of sick time, 3 weeks of personal leave, and 5 weeks of vacation, that amounts to 10 weeks of paid leave. Under the new rules, Ron may take another 2 weeks of unpaid FMLA leave, because FMLA allows for 12 weeks per year. Ron has substituted paid leave for part of his FMLA.
Another, seemingly less significant, proposed change refers to “perfect attendance” awards. No longer will employees who use FMLA qualify for those awards. An employer will be allowed to consider FMLA leave as an absence. In the existing rules, FMLA leave could not be counted toward work absences. Both employers and coworkers argued that it was unfair if employees received the “perfect attendance awards” and bonuses even when they took their 12 weeks of FMLA time off.
More Minnesota FMLA Changes
A series of proposed changes to the Family and Medical Leave Act (FMLA) regulations deal with, among other things, the idea of an employee’s “serious health condition.” They also address the question of medical certification of the condition.
The FMLA includes a provision allowing an employee to take up to 12 weeks of job protected, unpaid leave annually if the worker or a member of the immediate family has a “serious medical condition.”
The U.S. Labor Department allows employers to require that the seriousness of the condition be supported by the certification of a healthcare provider. Employers may require opinions by a second or third physician, provided they, the employers, pay for the second and third opinion.
Under the new rules, 6 definitions of “serious medical condition” have been retained while guidance on 2 terms has been added. One definition says a “serious medical condition” involves more than 3 consecutive days of incapacity and two visits to a healthcare provider.” However, “two visits to a health care provider” is not defined in the current rules, and could mean 2 visits in 2 years. The Tenth Circuit Court, meanwhile, has said the visits must happen within the three-day period of incapacity. The Department of Labor is proposing that the rule be clarified to say the 2 visits must happen within 30 days of the period of incapacity.
The proposed changes were announced February 11, 2008. A public comment period will continue until April 11, 2008, when the regulations take effect.
Other proposed changes include a decision that “light duty” does not count as FMLA leave, as well as rulings on the “Ragsdale” decision and an employee’s right to settle FMLA cases out of court. The changes would permit substitution of paid leave under some condition and give employers the right to deny “Perfect Attendance Awards” to employees who have taken FMLA leave. The proposals would make changes to the “fitness-for-duty” certification to return to work.
Victoria Lipnic of the Labor Department said it is time to update the regulations to reflect court decisions and clear up ambiguities, among other things.
I’m sure that new parents will be interested to see that the state of Minnesota has made many provisions above and beyond those of the Federal government for Parental Leave from work. They have not made any specific rules governing leave if you happen to be sick.
For example, if you have a baby or adopt one and your employer has 21 or more employees on one job site, the employer must offer you parental leave. I am happy to see that this can be for both the mother AND the father. In order to be eligible for that leave, you must have worked at least half time (twenty hours a week) for the 12 months preceding your leave.
It is my understanding that your leave may begin not more than six weeks after the birth or adoption occurs. If you have paid parental leave which you want to run concurrently with the unpaid leave, you may still be limited to 6 weeks unless the employer agrees that you can take more time off. Your employer cannot retaliate against you if you ask for leave. If you need income, you do have an option of returning part-time to your job during the leave without giving up the right to your full-time job at the end of the leave.
If you’re a working parent and your child becomes ill, you can use your sick time to care for a sick child. You can even take time off up to 16 hrs to attend your child’s school functions like classroom activities and conferences.
I noticed that your health insurance during the 6 weeks of unpaid leave must be continued, but the employer has the right to ask you to pay for it during that period of time. Upon returning to the job, the employer has to offer you a comparable position to the one that you left, and you’ll still have the same benefits and seniority that you had before the leave.
All of the Minnesota labor information can be found along side the federal laws on the Minnesota Complete Labor Law poster.