In yesterday’s Advisor, attorney Frank Alvarez covered several key points on compliance with new FMLA regs. Today, more of Alvarez’s tips, and an introduction to the first available updated FLMA compliance guide.
Intermittent leave has always been a bugaboo for HR managers, and the new regulations do offer some clarifications. Here are Alvarez’s thoughts on that and other FMLA issues.
Alvarez is national coordinator of law firm Jackson Lewis’s Disability, Leave & Health Management Practice Group.
Minimum Increment of Intermittent Leave
Employers have been tormented by the old reg’s requirement to account for intermittent leave in small increments. Under the new regs, the employer must account for the intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour.
However, the final regulations clarify that employers are not required to account for FMLA leave in increments of 6 minutes or even 15 minutes simply because their payroll systems are capable of doing so.
Exception to Minimum Increment’ Rules for ‘Physical Impossibility’
In another welcome clarification, when the nature of the workplace makes it physically impossible for employees to start work midway through the shift, the entire shift may be designated as FMLA leave, says Alvarez. The DOL, however, intends the exception to be applied narrowly, he notes. DOL gives examples such as a flight attendant, train conductor, or a laboratory technician whose workplace is inside a clean room that must remain sealed for a certain period of time.
Calculation of Leave When Employee’s Schedule Varies
Another clarification deals with calculating an employee’s leave entitlement when the employee works a schedule that varies from week to week. Under the new rule, employers will use a weekly average over the 12 months preceding the leave period, rather than just the prior 12 weeks, as required under the current rule.
FMLA Changes—The #1 Hassle of 2009. BLR is readying your compliance guide now—go here for information or to preorder.
Inability to Work Overtime Protected by FMLA
The DOL has clarified that missed overtime may be counted against the employee’s FMLA leave entitlement if the employee would otherwise have been required to report for duty except for the taking of FMLA leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize 8 hours of FMLA-protected leave out of the 48-hour workweek, or 1/6 of the workweek.
However, the regs state, voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA entitlement.
Still a little shell-shocked by the new rules? Frankly, it’s an almost overwhelming task to get ready for these far-reaching changes. You’re going to need a helping hand. Good news! BLR’s editors have just finished preparing a comprehensive compliance guide.
It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.
A hurricane of changes in the FMLA—Will you be ready? Confused by the jumble of changes? Preorder BLR’s Comprehensive guidebook, Family and Medical Leave Act Compliance Guide. Get more information.
The Family and Medical leave Act Compliance Guide includes:
- Leave law overview
- All the new forms and advice on how to use them
- Practical guidance on implementing all aspects of the new rules
- Analysis of Federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
Plus
- A quarterly newsletter and updates, to make sure you stay in compliance as any changes come about.
For more information or to preorder your copy, Go here