President Bush amended the Family Medical Leave Act (FMLA) this past January to permit a family member to be a caregiver for a covered service member, extending the absence to 26 weeks in a twelve month period. In addition, as soon as the Secretary of Labor defines “any qualifying exigency” Family Medical Leave may be taken when a family member is called to active duty.


FMLA, enacted in 1993, is a relatively new law compared to most Department of Labor (DOL) laws.


Basically, the law allows employees who have worked a minimum of 1,250 hours and the previous twelve months to be reinstated to the same or a similar position after taking up to twelve weeks of unpaid leave to care for their own serious health condition; a family member with a serious health condition; the birth or adoption of a child; or a covered family member’s call to active duty. And to have up to 26 weeks of protected leave to care for a family member recovering from a serious illness or injury sustained while on active duty.


Currently, employers with 50 or more employees are covered by FMLA. In 2005, 77 million Americans were eligible and nearly ten percent received the benefit.


This congress and the DOL are working diligently to make significant changes in this legislation. The most consequential change is the proposal to lower the minimum number of employees from 50 to 25. Two areas of the current legislation that have received much attention are the definition of serious health condition and the administrative tracking of intermittent leave. The current definition of serious health condition is so broad, almost anything may qualify and employers have little authority to investigate an employee’s health condition. The medical condition is described by the employee’s doctor using the “Certification of Health Care
Provider” (“Certification Form”) form. The employer then makes the decision whether it qualifies as a serious health condition.


Under a proposed rule, employers would be able to seek clarification directly from the health care provider who completed the “Certification Form” without the employee’s consent. Yet, the employer would be obliged to tell the employee in writing if they determine the medical certification is deficient.


The employer must then designate the absence as FMLA and begin recording the designated time in increments as small as their timekeeping system will allow.


Unscheduled intermittent Family Medical Leave is burdensome for most companies. Proposed legislation will allow call-off procedures to be enforced and will no longer require perfect attendance awards to be given to those who have only had FMLA approved absences.

Audit Your Policy

• Define your 12-month period to calculate the allowance. Rolling prevents benefit “stacking”. You must give employees 60 days notice if you change the way the time period will be calculated.
• State that any absence for a FMLA purpose, whether paid or not, including worker’s compensation or short-term disability will automatically count against the employee’s allowance, if eligible.
• Have an internal process to encourage employees to communicate their potential need for FMLA benefits to the person designated to determine eligibility.
  Spell out when health care certifications and fitness for duty reports are required.
• Do your best to define “serious health condition”.
• Be sure to add the two new qualifying events.

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