HR Policies & Procedures

Key Changes of 2010—Are You Up to Speed?

From nursing mothers to ‘in loco’ parents, it’s been quite a year in HR, says attorney Stephen R. Woods. Today, his tips on some of the biggest changes of the year and what to do about them.

Woods is a shareholder in the Greenville, South Carolina office of law firm Ogletree Deakins, Nash, Smoak & Stewart, PC. His remarks came at BLR’s National Employment Law Update, held recently in Las Vegas.

Military Leave Entitlements Expanded Under FMLA

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 Fiscal Year.  The Act includes provisions that expand the military leave entitlements of the federal Family and Medical Leave Act (FMLA).

The new law expands the leave available for employees, and allows more employees to be able to take family military leave, Woods says.

Qualifying Exigency Leave

Before the amendments, an eligible employee—defined as someone whose spouse, child, or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves—was entitled to qualifying exigency leave.

The amendments extend qualifying exigency leave to an eligible employee whose spouse, child, or parent is a member of any branch of the Armed Forces and who was deployed or called to active duty in a foreign country. This extends the law in two ways:

(1) qualifying exigency leave is now available to eligible family members of a member of any branch of the military, and
(2) active duty need not be in support of a contingency operation.

Military Caregiver Leave

Prior to the amendments, military caregiver leave was available to eligible family members of active duty military only. After the amendments, military caregiver leave is also available to eligible family members of veterans of any branch of the military, so long as the prior military service was within 5 years of the medical treatment which causes the need for caregiver leave, Woods says.

The new amendments also expand the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. The definition now includes the aggravation of an existing or pre-existing injury of an active duty service member in the Armed Forces.

Therefore, employees may take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. It doesn’t matter when the pre-existing injury or illness started.


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DOL Extends FMLA Definition of “Son or Daughter”

The U.S. Department of Labor (DOL) issued an “Administrator’s Interpretation” on the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). The new interpretation broadens the definition of persons who stand in loco parentis so as to include employees in same-sex or other non-traditional relationships, without regard to their legal or biological relationship with the child, Woods says.

The FMLA defines “son or daughter” to include a biological or adopted child, and a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” The FMLA regulations define “in loco parentis” to include those with day-to-day responsibilities to care for and financially support a child.

According to this new interpretation, employees with no biological or legal relationship with a child may stand in loco parentis and be eligible for FMLA-protected leave. Significantly, the interpretation construes the regulations so that an employee who intends to assume the responsibilities of a parent need not provide both day-to-day care and financial support.


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Thus, according to the interpretation, an employee in a same-sex relationship will now qualify for leave to care for his or her partner’s child, even if the employee has not legally adopted the child. Additionally, an employee who will share child-raising responsibilities with the child’s biological or adopted parent would be entitled to leave for the child’s birth or to bond with the child following placement.

In tomorrow’s Advisor, Woods on nursing mothers and mandatory medicare reporting, plus an introduction to a unique program designed just for the smaller—or even one-person—HR department.

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