ABC Taxes, Tips & Tools

What is FMLA? The Fam­ily and Med­ical Leave Act (FMLA) applies to employ­ers of 50 or more employ­ees.  Cov­ered employ­ers must grant an employee up to a total of 12 work­weeks of unpaid leave dur­ing any 12-month period for one or more of the fol­low­ing reasons:

• for child­birth and care of the employee’s new­born child
• for adop­tion or foster-care place­ment of chil­dren with the employee
• for the employee to care for an imme­di­ate fam­ily mem­ber (spouse, child, or par­ent) with a seri­ous health condition
• for when the employee is unable to work because of a seri­ous health condition.

In addi­tion there have been recent sig­nif­i­cant changes to FLMA:

New mil­i­tary care­giver leave.  employ­ees must be given up to 26 weeks to care for fam­ily mem­bers who suf­fered a seri­ous injury or ill­ness while on active mil­i­tary duty.

New leave for fam­i­lies of National Guard and Reserve mem­bers.  Fam­i­lies of National Guard and Reserve per­son­nel on active duty are allowed to take up to 12 weeks of job-protected FMLA leave per year to man­age their affairs.  The employee (a spouse, son, daugh­ter or par­ent of the mil­i­tary mem­ber) is eli­gi­ble for cer­tain qual­i­fy­ing circumstances:

• short-notice deploy­ment
• mil­i­tary events and related activities
• child care and school activities
• finan­cial and legal arrangements
• coun­sel­ing
• rest and recuperation
• post-deployment activ­i­ties
• addi­tional activ­i­ties in which the employer and employee agree to the leave.

Revised def­i­n­i­tion of a “seri­ous con­di­tion.” The law says a seri­ous con­di­tion must involve more than three con­sec­u­tive cal­en­dar days of inca­pac­ity plus “two vis­its to a health care provider.” The new rules clar­ify that the two doc­tor vis­its must occur within 30 days of the period of incapacity.

• Direct con­tact with doc­tor allowed.  The new reg­u­la­tions allow employ­ers to directly con­tact an employee’s health care provider to seek clar­i­fi­ca­tion about infor­ma­tion on an employee’s FMLA cer­ti­fi­ca­tion form BUT, An employee’s “direct super­vi­sor” is pro­hib­ited from mak­ing such inquiries; only to a “health care provider, a human resources pro­fes­sional, a leave admin­is­tra­tor (includ­ing third-party admin­is­tra­tors), or a man­age­ment offi­cial” can make the inquiry.  Also, employ­ers can’t ask doc­tors for infor­ma­tion beyond what is required by the cer­ti­fi­ca­tion form.

Other changes to FLMA: In addi­tion to post­ing the FMLA notice, an employer must pro­vide the same notice in their employee hand­books or dis­trib­ute a copy of their FMLA pol­icy when the employee is hired.  Accord­ing tp new rules, employ­ees who take inter­mit­tent FMLA leave must fol­low the employer’s call-in pro­ce­dures for report­ing an absence, unless there are unusual cir­cum­stances. Employ­ees can retroac­tively vol­un­teer to set­tle their FMLA claims with their employ­ers with­out get­ting court or DOL approval, BUT prospec­tive waivers of FMLA rights is still pro­hib­ited.  Light duty doesn’t count toward FMLA leave.  Perfect-attendance awards can be denied to employ­ees who take FMLA leave as long as employ­ers treat employ­ees tak­ing non-FMLA leave the same way.

Now that we have cov­ered what FMLA is, let’s dis­cuss the ques­tion “Is bereave­ment cov­ered under FMLA?” Sup­pose an employee asks for and is given 12 weeks under FMLA  to care for a sick par­ent  who sub­se­quently dies.  This employee may feel that the time nec­es­sary to bury their par­ent and set­tle their parent’s estate is part of this leave, but strictly speak­ing it isn’t.  The leave is granted to care for a sick fam­ily not a dead one.  As the employer you must bal­ance the employee’s need with your company’s legal need as an employer to apply pol­icy uni­formly to all employ­ees, not just this one employee.  As dif­fi­cult as it may be, you must advise the employee that they now need to return to work or take alter­na­tive leave — if your com­pany has a bereave­ment leave pol­icy, this would be the time for the employee to use it.

How­ever, if the employee becomes sick because of their grief, that may result in a dif­fer­ent FMLA qual­i­fy­ing con­di­tion.  You need to pay atten­tion.  There are many other nuances an employer needs to be sen­si­tive to when it comes to FMLA issues which are beyond the scope of this discussion.

Art & Busi­ness Con­sult­ing LLC does not have a Human Resource Spe­cial­ist (HRS) on staff, there­fore if you need very spe­cific Human Resource advise you prob­a­bly should con­sult an HRS, but keep us in mind for other busi­ness ser­vices.  Busi­ness ser­vices are our busi­ness. If you need help, Please give Art & Busi­ness Con­sult­ing a call. We would love to engage you as a client.

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Tags: bereavement, Family Medical Leave Act, FLMA

This entry was posted on Tuesday, September 15th, 2009 at 3:01 pm and is filed under HR Info. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.