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Wednesday, February 16, 2011

Family Medical Leave Act

Posted by Sarah Conroy on 2/16/2011 11:47:00 AM

It is both a pleasure and honor to offer some information on Human Resources for the Maine State Chamber’s business community on a regular basis as a part of the Chamber’s new Maine Corner Store blog. I will be happy to answer questions at anytime on content as well as to take requests on future content. Please don’t hesitate to contact me using the information below. I look forward to your feedback!
Heads Up!
You may have recently heard about Governor LePage’s executive order to suspend Maine’s “misclassification” task force. This task force was examining how to ensure that de facto employees were classified as employees and independent contractors were also classified properly. Because the administration is looking at regulations, this topic will likely be addressed in the streamlining of labor regulations. Because one of the expressed goals of the LePage administration is to default to federal laws wherever possible and appropriate, it is worth a look at what the federal Department of Labor (DOL) is up to.
The DOL has a new approach called “Plan/Prevent/Protect.” This puts the onus on employers to ensure employees’ workplace rights are not violated. DOL rulemaking is underway with enforcement to follow to ensure employers are implementing plans to comply with the requirements. Two areas with increased oversight are the misclassification of nonexempt employees as exempt under the FLSA and the misclassification of employees as independent contractors. While it is unclear at this time how the DOL’s own review of its overlapping regulations will play out, employers are wise to look at how they are classifying employees to ensure that no back overtime wages are due or, in the case of an employee who had been misclassified as an independent contractor, whether statutory benefits are due. This applies particularly if you are a co-employer, hire a lot of temporary, part-time or seasonal employees.
I would be happy to furnish the tools currently available to help you test your positions and otherwise prepare for compliance, just contact me using the information below and tell me how I might assist. We do expect that we will be hearing a lot about independent contractor testing during Maine’s upcoming regulatory review process, so please check back for more information.
Family Medical Leave Act (FMLA)
In 2008 the DOL revised the Family Medical Leave Act to include new processes for requesting and substantiating leave among other requirements. There were also a few changes to the FMLA entitlements. A refresher:
  • In 2008, two new qualifying circumstances for FMLA were added – “qualifying exigency leave” and “military caregiver leave.”

    Exigency Leave: Family members of the Reserves or National Guard called to active duty were granted up to 12 weeks of leave for urgent “qualifying exigencies” related to a reservist family member’s (spouse, son, daughter, or parent) call to active service. 2010 Changes -- Expands the qualifying exigency leave benefits to include family members of active duty service members as well as reservists.

    Caregiver Leave: Family members were eligible for up to 26 weeks of unpaid leave to care for a family member (spouse, son, daughter, parent, or next of kin) who is injured while serving on active military duty. 2010 changes expands the caregiver leave provision to include veterans who are undergoing treatment for conditions occurring any time during the five years preceding the date of treatment.
As Maine has its own FMLA laws with different requirements, it is important to consider both when an employee requests leave. If you have an employee handbook, it should spell out the policy and be updated as the law evolves. It is unclear whether Maine will decide to sync its FMLA statute to the federal one. Since the employee thresholds are lower for Maine (15 employees v. 50 at the federal level), it is likely to be left as is because of Maine’s small business climate. To reconcile to the federal level would leave many employees ineligible for leave.
Sarah Conroy, SPHR, CEBS SHRM
Maine State Government Affairs Director

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Family Medical Leave Act (FMLA)
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