Intermittent FMLA & Omitted Spouses

Q: May employees take FMLA intermittent leave to care for a sick spouse?
A: Since 2009 the regulations haven't authorized it, but they may soon.

The US Department of Labor (DOL) proposed new rules for the Family and Medical Leave Act (FMLA) on January 30, 2012. Besides expanding family leave benefits for veterans, they also correct a previously existing anomaly that was likely a mistake.

In 2008, the DOL last revised its FMLA regulations after Congress amended the law to provide coverage for military families. Although the FMLA law permits intermittent leave for employees to care for their sick spouses, the DOL's 2008 FMLA regulations erred by leaving "spouses" off the list of relatives for whom employees may take take intermittent leave.

Specifically, 29 CFR §825.202(b) provides the list of relatives employees may take intermittent leave to care for when they're sick. And while it lists "parent, son, or daughter," it doesn't mention spouses. Similarly, §825.202(b)(1) says:

"Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee's own serious health condition, or a serious injury or illness of a covered servicemember...."

(There's some evidence that leaving spouses out of §825.202 was a mistake rather than intentional. For example, §825.204(a) specifically mentions transfers as being permissible to accommodate intermittent leave taken for a spouse.)

The DOL's 2012 proposed regulations corrects this error by adding "spouse" to the list. According to the DOL's "Section-by-Section Analysis":

"The Department also proposes to correct inadvertent drafting errors that were made in the 2008 final rule, including correcting the cross-references in current §825.200(g) and (f), and inserting the word 'spouse' in the first lines of §825.202(b) and (b)(1)."

Labor Code §2810.5 Notice (AB 469)

Under recently enacted Labor Code section 2810.5 (AB 469), California employers must give a "Notice to Employee" to new hires. The Labor Commissioner posted a sample Notice to Employee template (in several languages) and FAQs.

However, many questions still remain. For example, here are a few sent in by our members to LawRoom's "Ask the Editor" that we've answered:

• On AB469, where we have to indicate rate of pay and how overtime (OT) is calculated. Do we need to specify the OT hourly rate, or can we just specify OT is paid at 1-1/2. Do we need to go further and tell when double time is paid?
• We are a California employer and we are finalizing our template for the Employee Notice required under Labor Code 2810.5 (eff. 1/1/12). We are trying to decide if we have to include the PEO/leasing/agency section. We use agency temps, but they are not our employees. Do we still have to list those agencies?
• There is a new labor code section 2810.5 that came out that requires us to provide specific information (i.e., pay rate, workers comp carrier etc) to all new hires on form DLSE-NTE and also requires us to notify employees when there is a change to any of that information. We do notify our existing employees when they have a pay rate change via their check stub but we also provide them with a signed payroll change tag that includes the new pay rate, date of change and reason for change. Is that sufficient notification for the payroll change or are we still required to complete the DLSE-NTE for all employees?