New FMLA Regulations Mean New Policies and Procedures
The U.S. Department of Labor's revised Family and Medical Leave Act regulations take effect on January 16, 2009. One of the U.S. Department of Labor's primary objectives in crafting the new regulations was to improve communications between employers, employees and health care providers, and clarify the rights and responsibilities of employers and employees under the FMLA. As a result, the DOL has significantly modified the notice obligations that employers and employees must meet, along with the certification forms that employers may use in administering FMLA leave.
Employer Notice Requirements. The new regulations no longer include penalties for an employer's failure to designate qualifying time off as FMLA leave or notify an employee of his/her FMLA eligibility. They still, however, provide that an employer may be guilty of "interfering" with FMLA rights if it fails to meet the expanded notice obligations and if the employee can show "harm" as a result of the employer's failure to give a notice (e.g., if he or she would not have taken the time off if he or she knew that it would not qualify as FMLA leave). Thus, it remains critically important for employers to meet their FMLA notice obligations. Under the new regulations, there are now five basic employer FMLA notices:
Employers must post the revised FMLA poster notifying employees of FMLA rights ("General Notice"). The General Notice must be posted in places where employees and applicants can see it.
Employers must now also provide the information in the General Notice to all employees, either in an employee handbook or by distributing a copy of the General Notice. Since the General Notice has been revised, employers who have employee handbooks will need to review and revise their policies to include information from the General Notice.
The employer must give the employee an "Eligibility Notice" within five business days after the employee requests FMLA leave or the employer learns that the reason for an absence "may be" covered by the FMLA. The Eligibility Notice must tell the employee whether he or she is eligible for FMLA leave and has leave available and, if not, why not.
The employer must give a "Rights and Responsibilities Notice" at the same time that it delivers the Eligibility Notice. This notice must provide the employee with information such as whether medical certification is required, the employee's right to use paid leave, and other specific items of information listed in the regulations.
The employer must now give the employee a "Designation Notice," advising the employee whether the leave will be designated as FMLA leave. This notice must also tell the employee whether "fitness to return to work" certification will be required and, if so, it must list the employee's "essential job functions."
Sample notices are attached to the new regulations. If a "significant part" (which is not defined) of the employer's workforce is comprised of employees who are not literate in English, the employer must provide the notices in a language in which the employees are literate.
Medical Certification of Serious Health Conditions. The DOL has revised its model Certification of Health Care Provider form and has created separate forms for employee health conditions and family member health conditions. The DOL has also developed two new certification forms that may be used in the event of military family leave (i.e., to care for a covered family member with a service-related medical condition or because of a "qualifying exigency" related to active duty or a call to active duty). As is the case under the current regulations, employers may not ask the health care provider for any additional information beyond what is required on the certification form. Where a certification is incomplete or insufficient, the employer must return it to the employee; specify in writing what information is lacking; and give the employee seven days to provide additional information. Employers may also require an employee to provide a new certification each leave year for conditions that are indefinite or that last longer than one year.
Employee Notice Obligations. The new regulations continue the basic rules for employee notice of need for FMLA leave depending upon whether the leave is foreseeable (i.e., at least 30 days of notice) or unforeseeable (i.e., as soon as practicable). Importantly, the new regulations now provide that an employee must follow the employer's normal notice requirements for leaves and absences (which may require written notice), provided that it is practical for the employee to do so based on the specific facts. Employees still do not need to "apply" for FMLA leave; rather, it is up to the employer to determine whether the leave qualifies and to "inquire further" if the employee has furnished sufficient notice of circumstances that may qualify. Once an employee has been granted FMLA leave for a specific condition, however, the employee must notify the employer if a future absence is for the same FMLA-covered reason.
This is just a brief summary of the major changes related to employer and employee notice obligations under the FMLA, and the certification procedures. Employers will definitely want to review their policies and procedures relating to the FMLA and make modifications where necessary to comply with the new regulations. A copy of the DOL's new regulations and the sample notices and forms can be downloaded at http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763. Additional information can also be found on the DOL's Web site at http://www.dol.gov/esa/whd/fmla/finalrule.htm.
To help employers understand how to administer the FMLA under the new regulations, and to help them understand the new forms and notices and bring their policies and procedures into compliance, Warner Norcross & Judd's Labor & Employment Law Practice Group will be hosting a briefing on Friday, January 9, 2009. The morning session will focus on the new FMLA regulations and the recent amendments to the Americans with Disabilities Act, which took effect January 1, 2009. The afternoon session will focus on the Employee Free Choice Act and some of the legislative and regulatory changes we may see in 2009. More information on the program, along with registration information, can be found at http://www.wnj.com/newsevents/events/Detail.aspx?event=46.