New FMLA Regulations Effective January 16, 2009
The FMLA was enacted in 1993. It requires employers to grant
eligible employees up to 12 work weeks of unpaid leave during any
12-month period due to a serious health condition, to care for an
immediate family member with a serious health condition, to care
for a newborn child, or for adopting a child or caring for a foster
child.
It applies to government agencies and most business that employ
50 or more employees. To be eligible, employees must have worked
for their employer for at least 12 months and must have worked
1,250 hours during the 12-month period immediately before the
leave. The 12 months of service need not be consecutive; however,
service prior to a five-year break in service may be generally
ignored.
The Department of Labor ("DOL") has announced the new
regulations will go into effect on January 16, 2009. This means
employers must abide by the new regulations and if they are
required to post FMLA policies in the workplace, they must have
updated FMLA postings displayed Jan. 16, 2009.
New Regulations:
On November 14, 2008, the DOL released the new, final
regulations to the FMLA. The complete text of these regulations can
be found at: www.dol.gov. The text is over 200 pages in
length. Highlights of the changes that will impact most employers
are:
Employee's responsibility to provide notice
An employer can now require employees to follow the employer's
own call-in policies to provide notice of planned leave. The new
regulations provide that employees must give notice of unexpected
FMLA leave according to their employer's usual and customary
call-in procedures, absent unusual circumstances. In general, this
means that employees must report an absence before the start of
their shift, if the employer has a policy requiring them to do so.
Previously, employees could wait until two days after an absence to
notify the employer.
Employer's Obligations
The new regulations require employers to provide employees with
a general notice about the FMLA, an eligibility notice, a rights
and responsibilities notice, and a designation notice.
Serious Health Conditions
To qualify for FMLA leave because of a chronic condition,
employees now must certify that they visited a doctor at least
twice a year regarding that condition. The regulations clarify what
kinds of conditions and treatments qualify as "chronic conditions,"
"serious health conditions," and "qualifying treatments." For
example, the new regulations address the definition of serious
health condition that requires an employee to be incapacitated for
more than three calendar days plus "two visits to a health care
provider." The new regulations require that the two visits occur
within thirty days of the beginning of the period of incapacity and
the first visit to a healthcare provider must occur within seven
days of the first day of incapacity. The definition of serious
health condition requires incapacity of more than three calendar
days and continuing treatment by a healthcare provider. Under the
new regulations, the employee's first visit to a healthcare
provider must occur within seven days of the first day of
incapacity.
Fitness for Duty
Employers may now require returning employees to complete
"fitness for duty" tests if there is a possibility that performing
the job will raise a significant risk of harm to the employee or
others.
Rules on substitution of paid leave for unpaid leave
The new regulations also give additional guidance regarding the
substitution of paid leave for FMLA leave and new notice
requirements for employers.
Military Caregiver Leave
There is a 12-month period for leave under the military family
provisions. The 12-month period starts when the employee begins to
use leave and concludes 12 months later. Employers cannot require
that the 12 months be limited to one calendar year, i.e. January -
December for military families. Previously, only spouses, parents
and children of service members were eligible for FMLA leave. Now,
grandparents, aunts, uncles, first cousins and any relatives that
service members designated as next of kin are eligible to take this
leave. Relatives may take leave only once per injury. Each
qualifying relative may take leave again if the service member
relative suffers another injury. Such leave, however, is only
available so long as the service member remains in the military.
Another new benefit is available to relatives of those called to
active duty in the National Guard and the Reserves, who may now
take up to 12 weeks of leave in case of a qualifying exigency.
Qualifying exigency is broadly defined and may include
-
short notice deployment
-
military events and related activities
-
child care and school activities
-
financial and legal arrangements
-
counseling o rest and recuperation
-
post-deployment activities
Miscellaneous changes and clarifications
Employee privacy: In contrast to earlier
versions of the regulations, a new provision forbids direct
supervisors from obtaining employees' medical information when FMLA
certifications are needed. If an employer deems a medical
certification incomplete or insufficient, the new regulations
require the employer to specifically designate in writing what
information is missing, and give the employee seven days to cure
the deficiency. The new regulations also provide that employers may
request a new medical certification each leave year for conditions
that last longer than a year.
Light duty: Time an employee spends on "light
duty" does not count against the employee's FMLA leave
entitlement.
Intermittent leaves: The new rule also
clarifies how employers must treat employees who take intermittent
family leave - for example, an employee who takes off two hours
every day to take her daughter to cancer treatment. Generally,
employers must calculate such leaves in increments of one hour or
smaller. Employers must also track intermittent FMLA leave as they
would track other types of leave.
Article provided by Jaburg & Wilk attorney Kelly A.
Brown.