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FMLA Changes 2023: Staying Current with Recent Updates

26 Jul


If you’re like most employers, you struggle to stay abreast of continually changing compliance regulations—and that includes The Family and Medical Leave Act (FMLA). While we have not seen major FMLA changes in 2023, the Department of Labor (DOL) has released a number of relevant updates that employers should know.

FMLA: A Quick Review

As you know, employers are subject to the FMLA if they have 50 or more employees who worked at least 20 weeks in the current or preceding calendar year. To be eligible, an employee must have worked for an employer for at least 12 months and a minimum of 1,250 hours. (A new bill in Congress proposes to change this, which we’ll touch on later.)

The FMLA provides eligible employees with job-protected, unpaid leave for specific family and medical reasons. It grants eligible workers up to 12 weeks of leave within a 12-month period, during which they can maintain their health insurance and position without fear of losing them.

Qualified reasons for FMLA leave include:

  • The birth and care of a newborn, adopted, or foster child  
  • Caring for an immediate family member with a serious health condition
  • Dealing with the employee’s own serious health condition that keeps them from performing essential duties.

The FMLA also allows up to 26 weeks of leave to care for a covered service member with a serious injury or illness.

While these essentials haven’t changed, here is a round-up of five recent FMLA updates to keep in mind.

1. Clarification: FMLA Allows Employees to Limit their Workday Indefinitely

In February, the DOL released Opinion Letter FMLA 2023-1-A in response to an employer whose work schedule typically exceeds an eight-hour workday.

The DOL confirmed that under the FMLA, employees with serious, chronic health conditions could limit their workday hours indefinitely—beyond a 12-month period—provided they did not exhaust their leave. 

2. Confirmation: Remote Employees Are FMLA Eligible

In February, the DOL published Field Assistance Bulletin (FAB) No. 2023-1, which confirms that employees who work remotely are eligible for FMLA leave on the same basis as onsite employees.

The bulletin specifies that a remote employee’s workday starts when they begin their first “principal activity” and ends when they cease to perform it. 

To be eligible, a worker must be employed at a worksite where 50 or more employees work within a 75-mile radius.

3. Updated FMLA Employee Rights Poster Available

In April, the DOL released a redesigned employee rights poster, which includes updated language on how covered employers are defined under the law. You can read more about the changes here or download the poster directly.

4. Clarification: How Workweek Holidays Impact FMLA Leave

In May, the DOL clarified how holidays affect employee rights regarding FMLA leave entitlement.

According to Opinion Letter FMLA2023-2-A, holidays occurring during the workweek do not reduce the amount of the employee’s entitled leave, unless the employee is scheduled to work that day. You’ll find more information here.

5. FMLA Forms Expired in June (But You Can Still Use Them)

Although the optional-use FMLA forms many employers use officially expired on June 30, the DOL confirmed that employers can continue to use them. You’ll find more details here.

Pending FMLA Legislation: The Job Protection Act

While we did not see significant FMLA changes (to date!) in 2023, that may not be the case in the future. The Job Protection Act (S.210), which was recently introduced in Congress, would expand the FMLA to cover more employers and employees if passed into law.

Specifically, employers with one or more employees would become subject to the FMLA, as opposed to those with 50 or more workers. In addition, the employment period required to become eligible would be reduced from 12 months to 90 days.

The bill is currently under review in committee, so it’s unlikely we will hear anything further for some time. 

When it comes to labor compliance, it’s hard for busy employers to keep up with the changes that can impact their business. Learn how VensureHR can manage this for you, and sign up to receive our compliance updates.

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