On January 16, 2009, the U.S. Department of Labor (DOL) adopted new regulations to implement the Family and Medical Leave Act (FMLA) that change the rights of employees and duties of employers. The new rules add a “serious injury or illness of a covered service member” for whom the employee is eligible to provide care as a qualifying reason for leave.
“Military caregiver and qualifying exigency” were added as additional references for certifying leave. The DOL considered making changes, but made no actual changes to determining the number of employees for coverage under the FMLA.
Employees are eligible for leave, if their Employer has 50 employees at their worksite or within 75 miles of their worksite. Of course, Employees still have to be employed by the Employer for 12 months for at least 1250 hours for the 12 months preceding the leave.
However, a significant change was made to determine, if a Professional Employment Organization (PEO) would count as a joint employer for determining FMLA coverage. A PEO will be considered a joint employer, if the economic realities indicate that based upon all the facts and circumstances, the PEO is involved in the decisions to hire, fire, assign, direct and control the employees of its clients.
On the other hand, if it merely performs administrative functions such as payroll, then the PEO would not be considered a joint employer. Finally, the PEO’s client employer would not have the PEO’s office staff or the employees of other unrelated employers count towards coverage, unless they were economically dependent on the client employer.
These changes and others may have an impact on how you conduct business or how you can take leave under the FMLA. Additional changes can be found in the attached document, but if you have any specific concerns or questions, then please feel free to contact us.