WORKPLACE LAW -
New Family Medical Leave Act Regulations
Question:
I know that there are some new changes to the Family Medical Leave Act, though I don’t know what they are or how they impact my business. Help?
Answer:
There are indeed some new changes to the federal Family Medical Leave Act (“FMLA”) that were recently finalized and released by the U.S. Department of Labor (DOL). The revised regulations are over 750 pages in length. These changes will go into effect on January 16, 2009.
The new regulations are intended to provide employers with new tools to administer FMLA leave more efficiently, including improvements with regard to potential abuse of intermittent leave rights. The following are some of the more notable changes in the new regulations:
Employers’ general notice obligations: Under the revised regulations, covered employers must post a general FMLA notice even when they have no FMLA-eligible employees. In addition, employers that do not have an employee handbook or written materials describing benefits and leave must provide the general FMLA notice to each employee when he or she is hired. Posting requirements may be satisfied through an electronic posting, as long as it meets certain requirements.
New “eligibility notice”: When employees request FMLA leave, or when employers learn that an employee’s leave may qualify for FMLA, employers must notify employees of their eligibility to take FMLA leave within 5 business days (instead of the current 2-day requirement), absent extenuating circumstances. Employees must also receive a written notice detailing the specific obligations of employees, and explaining any consequences for failure to meet these obligations. Among other things, employers must inform FMLA-eligible employees of requirements regarding medical certification, the right to substitute paid leave, how to pay premiums for continuing benefits, and job restoration rights upon expiration of FMLA leave.
Eligibility determination maintained for 12 months: Once an employee establishes eligibility for a FMLA leave, all absences for the same qualifying reason that occur within 12 months are considered a single leave. The employee maintains FMLA eligibility as to the established reason throughout the applicable 12-month period.
Retroactive designation: The new regulations permit the employer to provide retroactive designation of an employee’s FMLA leave, if the delay does not cause the employee harm. In all cases where leave would qualify as FMLA, employees and employers can mutually agree that the leave be retroactively designated as FMLA leave.
Time to request medical certifications: The regulations increase the time frame for the employer to request certification from an employee, from 2 to 5 days, once an employee gives notice of need for leave or, in the case of unforeseen leave, commences leave.
Employers must notify employees of certification deficiencies: If an employee’s medical certification is deficient, employers must notify employees in writing of the additional information necessary to complete the certification, and allow employees 7 calendar days to provide that information. If employees fail to provide the necessary information, the employer may deny FMLA leave.
Fitness for duty certifications: Employers may demand more than a “simple statement” of an employee’s ability to return to work. Employers also may now ask for fitness for duty certifications for intermittent leave if reasonable safety concerns exist.
Explanation required to trigger FMLA protections: Employees must sufficiently explain the reasons for requested leave so an employer can determine whether the leave qualifies as a FMLA leave. If an employee fails to explain the reasons for their requested leave, the employer may deny their request.
Employees must specifically reference previously designated FMLA leave: When employees seek leave due to a reason for which they have previously been provided FMLA-protected leave, employees must specifically reference the qualifying reason for additional leave.
Employers may consider FMLA absences in determining employee rewards: Employers may now disqualify employees from bonuses or other incentive payments based on achievement of a specified job-related performance goal (such as attendance) when the employee has not met the goal due to FMLA leave.
The new regulations also provide for increased damages for employees that have suffered harm as a result of an employer’s interference with their FMLA rights. In addition, the new regulations provide some clarification with regard to the Military Family Leave Amendments that were enacted earlier this year. For instance, a “qualifying exigency” has now been defined by the regulations, and there is additional information and guidance regarding who qualifies for purposes of service member leave, and how to implement that leave.
In order to avail themselves of the new regulations, employers will need to update their FMLA policies and forms, and will need to ensure they are communicating effectively with their employees. Understanding and implementing the new FMLA regulations will undoubtedly prove to be a significant workplace issue for 2009.
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