Update—Effective March 8, 2013, the final FMLA regulations referenced in this article became effective. For more information on the final FMLA regulations, go read 2013 FMLA final rule: What has changed?
In order to see what the future holds for FMLA legislation and enforcement, we need only look at the various announcements, proposals, and programs coming from both the federal Department of Labor (DOL) and the states. These clues reveal a movement toward more changes in FMLA regulations and enforcement and, in the states, new laws that further strengthen employees’ rights to family and medical leave, both paid and unpaid.
Final regulations coming soon
Of course, the lead story in the FMLA for 2012-2013 is the impending final FMLA rule governing family military leave, airline flight crews, and timekeeping. For a full discussion of these pending changes, see the white paper Proposed FMLA Rules: Changes Coming. For now, in order to prepare for issuance of the final rule later this year, employers should:
- Review policies, notices, and forms, and flag any that will be impacted by impending changes to the regulations;
- Prepare to train managers on the upcoming regulatory changes;
- Continue to monitor news for the announcement of the final regulations, expected later this year.
New FMLA forms. In the DOL’s proposed rule, it announced that it intends to make what the Department calls “minor changes” to the:
- FMLA poster (WHD publication 1420),
- Notice of Eligibility and Rights and Responsibilities (Form WHD-381),
- Certification for Qualifying Exigency Leave for Military Family Leave (Form WHD-384), and
- Certification for Serious Injury or Illness of a Covered Servicemember for Military Family Leave (Form WHD-385).
These changes will reflect the fiscal year (FY) 2010 National Defense Authorization Act (NDAA) amendments and the Airline Flight Crew Technical Corrections Act (AFCTCA). The Department also intends to develop a new form for the certification for the serious injury or illness of a covered veteran.
In its proposed regulations, the DOL notified employers that it will be removing the government-issued forms and notices from the final regulations' Appendices. The forms will be available on the DOL’s Wage and Hour Division (WHD) website in the future so that forms can be changed more quickly in response to any future statutory or regulatory changes or in response to comments from the public.
Legislative changes: The states and paid leave
Although there have been rumblings in the federal government for years, more state legislatures seem to be actually making good on promises of providing paid leave for employees. In October 2015, the state of Washington’s paid family leave law will take effect. The state law grants employees up to 5 weeks of family leave insurance benefits with a maximum weekly benefit of $250. Two other states, California and New Jersey, already have similar paid family leave programs.
Paid sick leave. Some states have chosen to require paid sick leave in specified industries catering to the public, such as the service industry:
- Connecticut state law now mandates paid sick leave exclusively for service workers such as waiters, cashiers, and hairstylists. Under the state paid sick leave law, service companies with 50 or more workers in the state must provide service workers 1 hour of sick time for every 40 hours worked, up to a maximum of 40 hours per calendar year.
- In the District of Columbia, service companies with 50 or more workers must provide service workers 1 hour of sick time for every 40 hours worked, up to a maximum of 40 hours per calendar year.
Cities have also gotten into the act, requiring paid sick leave by local ordinance. For example:
- In Seattle, Washington, all private sector employers that employ four or more employees (at least one of whom performs work in Seattle) must provide paid sick and "safe" leave to their Seattle-based employees. The amount of paid leave an employee may accrue and the annual/calendar year limits on carryover depend on the number of employees an employer has in the prior calendar year.
- In San Francisco, California, employers are required to provide 1 hour of paid sick leave to an employee for every 30 hours worked. Under the ordinance, employees are allowed to accrue up to 40 hours of paid sick leave if they work for a small employer (fewer than 10 employees). Employees of larger employers can accrue up to 72 hours.
- Effective January 1, 2014, private employers in the city of Portland, Oregon, with at least six employees will be required to provide qualifying employees up to 40 hours (5 days) of paid sick leave per calendar year. Employers with five or less employees must provide up to 40 hours of unpaid sick leave per calendar year. All employees (i.e., temporary, part-time, or full-time) are entitled to protected sick leave if they work in Portland at least 240 hours within a calendar year.
Feds budget to assist state paid leave. The budget for fiscal year 2013 will help states provide paid family leave to workers. To support this effort, the 2013 budget allocates a $5 million State Paid Leave Fund within the DOL to provide technical assistance and support to states that want to establish paid-leave programs.
DOL’s plans for enforcement in 2013
The 2013 budget also preserves resources added to worker protection agencies under the Obama administration and includes $1.8 billion for these agencies. The budget documents include a $6 million request for WHD for increased enforcement of the FMLA and the Fair Labor Standards Act.
With respect to FMLA enforcement, the Budget Justification states that:
With the need to promote work and family balance, the WHD is examining its FMLA enforcement policies to ensure a more comprehensive approach to compliance. The WHD is developing strategies that will provide more in-depth review of the employer’s business practices and leave policies.
For employers, this most likely means more audits, DOL investigations and, as a result, more litigation of FMLA cases.