FMLA Enhancement Act introduced: Small employer exemption gets smaller

Jill Jensen-Welch Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 02/19/2014 at 08:16 AM by Jill Jensen-Welch

On February 5, 2014, Carolyn Maloney (D. NY) introduced H.R. 3999, the Family and Medical Leave Act Enhancements Act. If passed, the legislation would result in more covered FMLA employers and more FMLA-eligible employees. It also would add two new types of FMLA leave which are to be provided in addition to other FMLA leave. Finally, the legislation would expand the family members for whom these two new types of leave can be taken. Additional details about the legislation are provided in the bullet points below. gives H.R. 3999 a 1% chance of making it out of committee and a 0% chance of being enacted. That's not bad, considering only 11% of bills move past Congressional committees and only 3% are enacted. The FMLA has been amended before (i.e., FMLA military leave expansions) and there have been many attempts to expand it further. Several states have adopted mini-FMLA laws that are more generous than the federal statute (not Iowa, yet), and some states also protect non-FMLA types of workplace absences. The interest in 'enhancing' the FMLA is not likely to wither any time soon. • Coverage and Eligibility Expansion. H.R. 3999 would cut the FMLA employee eligibility requirement down from sites with 50 employees within a 75 mile radius to sites with 25 employees within a 75 mile radius. Not only does this make more employers and smaller employers subject to the FMLA, it also means more employees at employers already covered by the FMLA would become eligible for FMLA leaves. This change in employer coverage/employee eligibility would apply to all types of FMLA leave – not just the two new types of FMLA leave that are also proposed within H.R. 3999. • Parental Involvement Leave. H.R. 3999 would expand the FMLA to include Parental Involvement leaves for employees who miss work to participate in or attend activities sponsored by, and related to, programs of schools and community organizations. Several states already have laws that provide, or protect, time off for school activities, including but not limited to California, Illinois, and Minnesota. Iowa is not among them. Under the legislation, FMLA Parental Involvement leave would be available for use for an employee's son, daughter, or grandchild. Leave for grandchildren has not been covered by the FMLA before, except when the grandchild was a legal ward of the grandparents or the grandparents were in loco parentis with the grandchild. • Family Wellness Leave. H.R. 3999 also would expand the FMLA to include Family Wellness leave for absences to meet routine family medical care needs, including medical and dental appointments. Currently, absences for dental appointments, well-child medical appointments, or routine physicals do not qualify for FMLA leave. Under this legislation, Family Wellness leave would be available for use for the employee's son, daughter, spouse, grandchild (see definition in the paragraph above), or 'to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes.' No definition is provided for 'elderly individuals who are related to the eligible employee,' leaving it to the Department of Labor. • Leave Limits. Parental Involvement and Family Wellness leaves are limited to 4 hours in any 30 day period, and 24 hours in any 12 month period. It appears the two new FMLA leave types are combined to meet this new limit. These new leaves expand the maximum FMLA leave an eligible employee can take in a 12 month period by adding to the current FMLA limits (which are 12 weeks, or 26 weeks for Military Caregiver leave, in a 12 month period). Employees wishing to take Parental Involvement and Family Wellness FMLA leaves would be required to provide not less than 7 days' advance notice, or as much notice as is practicable under the circumstances, and employees would be required to try to schedule Family Wellness leave so as not to disrupt the employer's operations. Employers can require certification for the two new types of FMLA leave, but these details have also been left for DOL regulation. While the new FMLA leaves would be limited in H.R. 3999, it still increases protected employee absences along with the employer's burden to administer and be liable for missteps.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.


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