Table of Contents
The revised FMLA regulations were effective January 16, 2009. We are working on updating our FMLA forms, FAQs and informational documents. Since they are not updated as of today, here is a bulleted list of the revisions. Please familiarize yourself with these revisions.
The FMLA expanded leave entitlements to family members of military service personnel in two ways:
- up to 12 weeks of leave for the spouse, son, daughter or parent of a service member due to a qualifying "exigency" that arises because the service member is called to active duty or is notified of an impending call or order to active duty in the armed forces for a contingency operation; and
- up to 26 weeks of leave for a spouse, parent, son, daughter or next of kin to care for a service member who becomes seriously ill or is seriously injured while on active duty (see related story, p. 3).
The regulations define a qualifying exigency as: (1) a short-term deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities when the employer and employee agree to the leave. An eligible employee can take up to 12 weeks of FMLA leave, including intermittent or reduced schedule leave, for any of these purposes.
Employer Notice Obligations
When employees request FMLA leave, employers must provide employees with notice within five business days that they are eligible for FMLA leave. After the employer has received sufficient information that the request for leave is FMLA-qualifying, it must designate the leave as such within five business days. The notice must inform the employee of how much time will be counted against his or her FMLA leave allotment.
Employee Notice Obligations
When employees learn of a need for FMLA leave fewer than 30 days in advance, they are required to give notice of their need either the same business day or the next day, absent emergency situations. Also, if employees do not follow their employers' call-in policies, they may be subject to disciplinary measures, absent extraordinary circumstances.
The DOL has split the recommended medical certification form into two parts: one for an employee's own serious health condition and another for a family member's serious health condition. The department also provides forms for an employee's eligibility and designation of leave notice, as well as certifications for a qualifying exigency and for serious injury or illness of covered service members.
An employer may now contact an employee's health care provider for clarifying and verifying the worker's medical certification, if the employee is first given the opportunity to do so and the requirements of the Health Insurance Portability and Accountability Act have been met. If an employee fails to give consent to this contact, he or she may lose FMLA protection if his or her medical certification is incomplete or insufficient.
Nonconsecutive Periods of Service
Employers are required to count any service an employee had with an employer prior to a break in service of up to seven years toward his or her 12-month employment eligibility threshold. This does not eliminate the requirement to have worked for 1250 hours in the preceding 12 months.
Designation of Leave
The new regulations delete an original provision that stated that if employers did not designate FMLA-qualifying leave as FMLA leave it would not count against an employee's FMLA leave entitlement. Now an employer can be liable for not designating FMLA-qualifying leave only if the employee can demonstrate he or she suffered actual harm.
Serious Health Condition
The new regulations clarify that if an employee takes leave for a medical condition involving more than three consecutive calendar days of incapacity and needs to have two visits to a health care provider, those visits must occur within 30 days of the period of incapacity for the condition to be classified as a serious health condition. Also, for a chronic serious health condition to be present, an employee must make at least two visits per year to a health care provider.
The rules clarify that time spent in a light-duty capacity does not count against an employee's FMLA leave allotment. An employee may stay in that light-duty position until his or her FMLA 12-month leave year ends, at which time the employee loses his or her restoration rights.
Waiver of Rights
The rules clarify that an employee can voluntarily settle past FMLA claims without court or departmental approval. An employee's waiver of prospective FMLA rights is prohibited.
The Alaska Family Leave Act (AFLA) (Chapter 96 SLA 1992) became effective September 16, 1992 and the federal Family and Medical Leave Act of 1993 (FMLA) became effective August 5, 1993. The Acts promote preservation of the integrity and stability of the family unit, job security for the employee, as well as accommodating the legitimate business interests of the employer.
- The AFLA provides a job-protected absence for up to 18 weeks in a 24-month period to eligible employees for a qualifying serious medical condition. It also provides a job-protected absence for up to 18 weeks in a 12-month period to eligible employees for pregnancy, childbirth or adoption.
- The FMLA provides a job-protected absence for up to 12 weeks in a 12-month period to eligible employees for a qualifying condition.
The Acts supplement other laws, contractual requirements, policies and practices regarding leave thereby placing additional administrative requirements on the employer. Frequently Asked Questions Regarding Family Leave (PDF) is a document providing information about the State of Alaska's administration of family leave in compliance with the state and federal Acts. Family leave must be invoked for all qualifying conditions if the employee otherwise qualifies for family leave. When an employee is eligible under both Acts, the entitlements run concurrently.
The Family Leave Packet consists of the following forms:
- Conditional Family Leave Notification (completed by employee or supervisor/departmental designee)
- Your Rights Under FMLA/AFLA (information for the employee)
- Certification of Health Care Provider (employee provides to Health Care Provider)
Supervisors (or departmental designee) are to complete the Conditional Family Leave Notification form when they have reason to believe an employee is taking leave for a qualifying condition. The state chooses to require a Certification of Health Care Provider (CHCP) to document the employee’s need for medical leave that exceeds three consecutive workdays. The CHCP can be sent directly to Absence Management by the Employee or their health care provider.
Upon completion, a copy of the Conditional Family Leave Notification form is routed (fax/scan/mail) to Absence Management for further processing. The original is provided to the employee with the remaining forms in the packet. Absence Management will begin the eligibility determination process upon receipt.
Go to the Absence Management Contact webpage to find who to reach out to with questions.
Links are provided below to resources for additional information regarding family leave.
- Alaska Administrative Manual - AAM 280.360 (PDF)
- AFLA/Alaska Statutes - AS 39.20.500
- Family Leave Presentation: (choose format) Powerpoint | PDF
- FMLA/Federal Regulations
- Family Leave FAQs
- Labor Relations - Collective Bargaining Agreements
- Leave Rules - Alaska Administrative Code
- Division of Personnel - HR forms list
- Conditional Family Leave Notification (PDF)
- Your Rights Under FMLA/AFLA (PDF)
- Certification of Health Care Provider (PDF) (employee provides to Health Care Provider. This form can be faxed or emailed by the Health Care Provider directly to Absence Management)
- Certification of Serious Injury or Illness of a Covered Service Member (PDF)
- Certification of Qualifying Exigency (PDF)