FMLA Update addresses a complex issue for employers and HR practitioners. Every year, we offer a recap of key FMLA 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, lessons learned from case law, and tips on fundamentals and best practices.
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, HR professionals, and employment law attorneys on his blog, FMLA Insights. See his post: The American Bar Association’s summary of cases from the prior year for “a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.” Here’s a direct link to the PDF: ABA’s Summary of 2021 FMLA Cases.
FMLA forms – DOL provides “optional-use forms which can be used by employers to provide required notices to employees, and by employees to provide certification of their need for leave for an FMLA qualifying reason. These forms are electronically fillable PDFs and can be saved electronically. Alternatively, employers may use their own forms, if they provide the same basic notice information and require only the same basic certification information.” This year, the DOL updated most forms with an expiration date of 6/30/2026, Click to access all FLMA forms.
FMLA Posters – DOL issued a revised poster in April 2023, Changes appear to b =e mostly cosmetic. DOL says that the April 2016 and February 2013 versions still fulfill the posting requirement.
Caregiver Resources – DOL issued a website for Family Caregivers: Information on the Family and Medical Leave Act – U.S. Department of Labor web resources, FAQs, and more.
FMLA Update: State leave laws
- State Family and Medical Leave Laws – from NOLO.
- Mercer issued a detailed 27-page PDF on 2023 state paid family and medical leave contributions and benefits.
- State Paid Family & Medical Leave Insurance Laws – updated in October 2023, from the National Partnership fr Women & Families.
- State Paid Family Leave Laws Across the U.S. – from the Bipartisan Policy Center; updated in September 2023.
- State Family & Medical Leave Laws – from HRMorning
FMLA at 30 years
- 30 Years of Family and Medical Leave – from the Department of Labor
- The State of Unpaid Family and Medical Leave in the U.S. in 2023 – This fact sheet from The Center for American Progress provides an overview of unpaid family and medical leave laws in the United States, including the federal Family and Medical Leave Act.
- FMLA: The 30-year legacy of a celebrated — and complicated — employment law – from HR Dive
- The FMLA at 30: A roundup of stories on the law’s past, present and future – from HR Dive.
FMLA Update: New or Updated Fact Sheets / Posters
DOL issued fact sheets and guidance on several issues this year (see below). One focus was mental health, and although nothing about eligibity changed, the guidance is intended to offer clarifications.
- FACT SHEET: Protecting Individuals from Discrimination Based on Actual or Perceived Religion, Shared Ancestry, or Ethnic Characteristics
- Fact Sheet #28Q: Taking Leave from Work for Birth, Placement, and Bonding with a Child under the FMLA
- Fact Sheet #28P: Taking Leave from Work When You or Your Family Member Has a Serious Health Condition under the FMLA
- Fact Sheet # 28O: Mental Health Conditions and the FMLA
- Fact Sheet #28N (revised) Joint Employment and Primary and Secondary Employer Responsibilities Under the Family and Medical Leave Act (FMLA) (PDF)
See all Fact Sheets – note that several were updated in 2023.
Noteworthy articles and tips on FLMA topics from expert legal and HR sources
- FMLA Insights: FMLA Rules Are Important, But Don’t Let Them Stand in the Way of an Employee in Need
- HR Daily Advisor: Evolving HR: FMLA and the Modern Workplace
- McAfee & Taft: DOL provides new guidance on FMLA leave for mental health conditions
- HR Daily Advisor: New DOL Guidance Address Mental Health Leave Under FMLA
- HR Daily Advisor:DOL Explains Expanding FMLA Leave to Care for Mental Health Conditions
- Employment & Labor Insider: How to handle wage-hour issues with remote workers
- Ogletree Deakins: DOL Clarifies Telework Eligibility Under FMLA and ADAAA, Including Reduced Schedule Leave for ‘Serious Health Conditions’
- FMLA Insights: When You Send Your Employees To Work Abroad, Do They Lose the Right to Take FMLA Leave?
- Disability Scoop: Caregivers Of Adult Children With Disabilities May Qualify For Time Off Work, Feds Say
- Proskauer Rose LLP: Four Things You May Not Know About … the Family and Medical Leave Act
- FMLA Insights: DOL Opinion Letter Sheds Light on Calculating FMLA Leave During a Holiday Week
- Perkins Coie: US Department of Labor Clarifies Calculation of FMLA Leave on Holiday Weeks
- SHRM: Look-Back Method Is Beneficial but Complex Way to Calculate FMLA Time Off
- BenefitsPro: How HR departments can traverse the complexities of the FMLA
- Ohio Employment Law Blog: Yes, you can still fire employees for lying, even when they are seeking FMLA leave
- Employment & Labor Insider: Request for “FMLA leave” is protected activity, court says
- FMLA Insights: Is an Employer Required to Provide FMLA Leave Indefinitely to an Employee Who Cannot Work Overtime?
- HR Daily Advisor: DOL Guidance Spotlights FLSA, FMLA, and Visa Program Retaliation
- Ogletree Deakins: Four Key (and Surprising) Points for Navigating FMLA Leave
- FMLA Insights: May an Employer Legally Deny a Bonus to an Employee After Taking FMLA Leave?
- Ohio Employment Law Blog: Facebook Messenger and other alternative communication channels for attendance call-outs
- Parker Poe:Intermittent Extended Leave for Stress and Anxiety Raises Difficult Issues for Employers
- Ohio Employment Law Blog: “Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim
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
- Check out our 2022 FMLA Update.