The Department of Labor has released its long awaited final revised regulations implementing the Family and Medical Leave Act (FMLA). These
regulations, which go into effect on January 16, 2009, offer clarification of both employer and employee obligations, give employers resources
and guidance on more effectively implementing the FMLA, and address a number of questions about the 15 year old Act.
The following are just a few highlights of what the revised regulations, over 750 pages in length, contain:
Medical Certification Process – Timing
Under the new regulations, employers may request medical certification up to five days after the employee has either given notice of need for
leave or, in the case of unforeseen leave, the date the employee begins her leave. The employer may also request a new medical certification
each leave year for conditions that last longer than a year and may request a recertification every six months if the leave involves an ongoing
"serious medical condition."
Medical Certification Process – Content
If an employer receives a medical certification and determines that it is incomplete or insufficient, the new regulations require that the
employer inform the employee of the deficiencies in writing and give him seven calendar days to cure the deficiency. The new regulations also
allow an employer to contact the employee's health care provider for clarification of information contained in the medical certification.
However, the employer's representative making that contact must be a health care provider, human resources professional, leave administrator,
or a management official. Moreover, under no circumstances may the employee's direct supervisor make this contact.
Fitness-For-Duty Certifications
An employer may now require that a fitness-for-duty certification specifically address the employee's ability to perform the essential
functions of the job, rather than just providing the "simple statement" required under the current regulations. Further, where employers have
reasonable job safety concerns, they may require an employee on intermittent leave to provide a fitness-for-duty certification before returning
to work.
Employer Notice Obligations
Under the new regulations, employers covered by the FMLA are required to provide their employees with a number of notices. First, as with the
current regulations, employers must post a general FMLA notice in the workplace and include the notice in the company’s employee handbook or
distribute to each employee upon hire. Second, under the new regulations, employers must provide a personalized eligibility notice when an
employee requests FMLA leave or the employer has knowledge that leave may be FMLA qualifying. Third, simultaneously with the eligibility
notice, employers must issue a "rights and responsibilities" notice detailing the employee's obligations to provide a medical certification;
the right to substitute paid leave, etc.; and the consequences of an employee's failure to comply. Finally, the new regulations require
employers to issue a designation notice within five days after receiving sufficient information to determine that leave will be covered by the
FMLA, notifying the employee that the leave has been designated as FMLA leave.
Employee Notice Requirements
Under the current regulations, employees are able to notify their employer up to two business days after an absence, even if the absence was
foreseeable. Under the new regulations, employers may require that an employee in need of FMLA leave follow the employer's usual and customary
notification procedures for reporting absences, except if unusual circumstances exist (i.e. employee is unable to call in because they
are seeking emergency medical treatment, employee called in but no one answered the phone, etc.).
Serious Health Condition
The new regulations do not change the six individual definitions of a serious health condition. However, the regulations clarify that when an
employee takes leave that involves more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two
visits must occur within 30 days of the beginning of the period of incapacity, and the first visit must occur within seven days of the start
of the incapacity.
Military Related FMLA Leave
The new regulations also address two new types of leave created in January 2008, Military Caregiver Leave and Qualifying Exigency Leave. The
new regulations list eight types of "qualifying exigencies," in which an employee may qualify for leave and define the term "next of kin," which
had not previously been defined by the FMLA.
The Bottom Line
The issues outlined above highlight some of the more significant changes under the new regulations. Unfortunately for employers, time is of the
essence! Although changes to the regulations have been years in the making, employers will have just 60 days from the issuance of the
regulations on November 17, 2008, to update their policies and procedures and train managers to be aware of the new changes.
If you have any questions regarding this e-Alert, you can contact:
Elaine Howard at ehoward@jw.com
Elaine Conway at econway@jw.com
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