It’s time for the 2022 FMLA Update! Every year, we offer a recap of key issues, case law, tips and tools that we source from employment law attorneys and HR experts. Our update points to significant developments for the prior year, hits on lessons learned from case law, and offers tips on fundamentals and best practices. FMLA is a complex issue for employers and HR practitioners. We know this because it is consistently one of the top searches on our site. That’s why we monitor resources, articles and tools that readers might find valuable.
What’s new in the past year
Case Law: Every year, Family Medical Leave Act guru and employment law attorney Jeff Nowak of Littler posts a key resource for employers and HR professionals and employment law attorneys on his blog, FMLA Insights. The American Bar Association’s summary of cases from the prior year – “a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.” ABA’s Summary of 2021 FMLA Cases (PDF).
FMLA update – forms – In 2020, the DOL released new FMLA forms. Make sure that your forms have a revision date of “June 2020” and an expiration date of “6/30/2023.” Here are two resources about these forms – we posted them last year, but repost because they are handy: A Guide to the New FMLA Forms and 6 Good Reasons to Use New Model FMLA Forms.
Increased Audits: In February, the DOL Announces Ramped-Up FMLA Audits for Employers in Select Industries. Also see: DOL Guidance Emphasizes Enforcement of FMLA and FLSA Anti-Retaliation Provisions
FMLA Update: State paid leave laws: 2022 state paid family and medical leave contributions and benefits – Mercer: As of January 2022, California, Connecticut, Hawaii, Massachusetts, New Jersey, New York, Puerto Rico, Rhode Island, Washington, and Washington, DC, mandate paid leave for an employee’s own health condition. Oregon and Colorado will begin similar programs in 2023. Except for Hawaii and Puerto Rico, these jurisdictions also require paid family leave for bonding with a new child, caring for a seriously ill or injured family member, and certain other purposes. Despite some common elements, differences in these mandates make compliance and administration particularly challenging for multistate employers. Read the highlights or download the 16-page PDF for more details and a chart summarizing key element of each jurisdiction’s requirements.
Here are some other state law developments:
- Maryland Enacts a Paid Family and Medical Leave Program – Beginning October 1, 2023, every employee working in Maryland, self-employed individuals, and employers with 15 more employees participating in the Program must begin contributing to the Program fund (the “Fund”). A covered employee is one who has worked at least 680 hours over a 12-month period immediately preceding the date on which leave is to begin.
- Connecticut Department of Labor Issues Final Proposed Connecticut Family and Medical Leave Act Regulations
- A Refresher on the California Family Rights Act
- New Nevada Law Provides Time Off for Assistance of Family Members
- D.C. Modifies the Paid Family Leave and Local FMLA Laws
- New York Paid Family Leave Law Amended to Allow Leave to Care for Siblings
FMLA and Covid-19
- JD Supra – Locke Lord: The “State” of Family and Medical Leave Laws in the Wake of COVID-19
- FMLA Insights: Access the Recording of our Webinar: Managing Remote Work Requests During (and After) the Pandemic
- FMLA Insights: Under the ETS, What Paid Leave Must an Employer Provide an Employee to Obtain a COVID-19 Vaccine or Test?
- JD Supra – SmithAmundsen: Lingering COVID-19 Symptoms May Trigger ADA And FMLA Protection
- National Review: Long COVID: The Long (and Short) of Compliance with the ADA
FMLA and Workers Comp
- JD Supra – Bricker & Eckler: Do FMLA and workers’ compensation benefits run concurrently?
- JD Supra: Akerman: Worker Injured on the Job? Don’t Forget Potential FMLA Rights
- HR Daily Advisor: Mishandling Return to Work in Worker’s Comp Context Risks FMLA Liability
General FMLA Fundamentals
- SHRM: Common FMLA Missteps—Don’t Be ‘That Guy’
- FMLA Insights: What Can Baseball Teach Us about the FMLA?
- HR Dive: FMLA leave not always a straightforward 12 weeks, DOL advisor explains
- HR Daily Advisor: Ask the Expert: FMLA and Caring for Family Members
- SHRM: Do FMLA Leave Requests Scare You?
- FMLA Insights: Ten Ways to Combative the Misuse of FMLA Leave as Summer Nears
- FMLA Insights: Back to the FMLA Basics: When Does an Employee Recoup FMLA Leave in a New FMLA Year?
It’s in the details ….
- HR Daily Advisor: Employee Fired for Excessive Absences After Making Need for FMLA Leave Known
- SHRM: ADA Leave Beyond FMLA Time Off May Be Required
- JD Supra – Parker Poe Adams & Bernstein:: FMLA Does Not Require Leave Following a Relative’s Death
- JD Supra – McAfee & Taft: FMLA does not prohibit termination for failure to comply with call-in requirements
- HR Daily Advisor: Lack of Documentation Hinders Employer’s Ability to Deal With Suspected FMLA Abuse
- FMLA Insights: What’s an Employer To Do When It Realizes It Failed to Designate FMLA Leave?
- JD Supra – Sherman & Howard: Employers Cannot Force FMLA Leave That Is Not Medically Necessary
- FMLA Insights: When an Employee Takes FMLA Leave During a Holiday Week, How Much FMLA Leave is Actually Taken?
- FMLA Insights: Can an Employer Discipline an Employee for Excessive FMLA-Related Absences Before Requesting Recertification? The Simple Answer is NO.
- HR Daily Advisor: Court Deems Broken Toe and Voicemails Were Sufficient for FMLA Claim
- FMLA Insights: When Your Employee Calls off Sick with “Flare-Ups,” Is This Sufficient Notice of the Need for FMLA Leave?
- HR Daily Advisor: MN Employer’s Attendance Policy Outweighs Former Employee’s ADA, FMLA Claims
- FMLA Insights: What Federal and State Leave Laws Apply to Your Remote Employee?
- FMLA Insights: Can an Employer Grant FMLA Leave, but Also Discipline an Employee for Failing to Timely Report the Absence
- HR Daily Advisor: Q&A: Determining Whether Elective Surgeries Are Covered Under FMLA
- HR Daily Advisor: Employer’s Ambiguous Communications Lead to Trial in FMLA Case
- JD Supra – Jackson Walker: Avoiding Retaliation Claims Under the Family Medical Leave Act
- SHRM: Immediate Termination Upon Return from FMLA Leave Suggests Retaliation
FMLA Update: Key Resources
- U.S. Department of Labor Family and Medical Leave Act – The U.S, Department of Labor’s general index to resources on FMLA, including an overview, news, laws, general guidance, e-tools, posters, and Fact Sheets in English, Spanish, Chinese, Korean, Tagalog and Thai.
- FMLA forms – optional-use electronically fillable PDFs forms for employers to provide required notices to employees, and by employees to provide certification of their need for leave for an FMLA qualifying reason.
- FMLA Fact Sheets
- elaws Family and Medical Leave Act Advisor – The elaws Advisors are interactive e-tools that provide easy-to-understand information about a number of federal employment laws. Each Advisor simulates the interaction you might have with an employment law expert. It asks questions and provides answers based on responses given. Both employees and employers can benefit from elaws.
- NCSL: State Family Medical Leave Laws
- Federal vs. State Family and Medical Leave Laws
- Check out our 2021 FMLA Update.
