FMLA REGULATIONS ARE FINALLY FINAL - WILL YOU BE READY?

The U.S. Department of Labor just published voluminous new regulations amending the Family and Medical Leave Act (FMLA). This is not the holiday present we were hoping for!
Employers with 50 or more employees are in for many changes under the new regulations, some of which require careful thought and some internal policy changes. This is particularly challenging because employers must learn about and be ready to implement these changes by January 16, 2009, the effective date of these regulations. Non-compliance, even an inadvertent mistake, has never been a good alternative.

However, the new regulations have made the option even more risky by expanding the scope of potential liability if litigation arises.

An executive summary of the most significant changes is below, and a more comprehensive analysis of these changes can be found here. Employers who want more information or better insight into how to deal with these changes may want to attend our FMLA Client and Friends Seminar on January 7, 2009. Please This e-mail address is being protected from spambots. You need JavaScript enabled to view it to email Chris Weckel to indicate your interest in attending. More details to follow. Finally, we will be speaking at the Webinar entitled: New FMLA Regulations Bring Enormous Change to FMLA Compliance. This is sponsored by COEM. Please click here to learn more.

Change No. 1: Employee Notice Must Be Timely, Substantive, and Consistent with Company Policy

Employees generally must provide notice of the need for leave 30 days in advance. In cases where this need is not foreseeable, employees must provide notice as soon as practicable - meaning the same day or no later than the next business day. The new regulations make it clear that employees cannot wait to advise the employer that the leave may be FMLA qualifying, absent some extraordinary circumstances preventing earlier notice. They also make it clear that employees must follow the employer's normal and customary call-in procedures, unless unusual circumstances exist.

In addition, the new regulations put the burden on the employee to provide enough information for the employer to understand if the reason for leave might be FMLA-protected. For ongoing, chronic, or repeated conditions that were the subject of a prior FMLA certification, the employee must advise the employer of the condition and the prior certification. If the leave is prompted by a new condition, the employee must provide more than just broad and general information, such as "I'm sick."

Change No. 2: Serious Health Condition Certification Has a New Form and a Clarified Standard

Although the alternative definitions of "serious health condition" have not changed, the new regulations provide guidance as to certain aspects of these definitions. For instance, they focus on what is really meant by more than three consecutive days of incapacity plus two visits to a health care provider. We now know that the first visit must occur within 7 days of the initial incapacity and the second must occur within 30 days of the period of incapacity. Given this requirement, it is possible that such a leave does not become FMLA-qualifying until 30 days have passed.

While it may be tempting to wait until all events have occurred to identify a leave as FMLA-qualifying, the better practice is to provide employees with a Certification of Health Care Provider (either for the employee's own serious health condition or that of a family member) and to allow the provider to make that determination, even if not all the qualifying events have yet occurred.

Change No. 3: Employer Notice Now Has Many Parts & All New Forms

The new regulations increase the employer notice requirements to employees. Specific changes are highlighted below.

ï General Notice: If an employer does not maintain a company handbook, the "General Notice" of FMLA rights must be distributed to all current employees in January and to each employee thereafter upon hire.

ï Eligibility Notice: Employers must issue a personalized "Eligibility Notice" within five days of either a request for leave or after learning that a leave may be FMLA-qualifying. The notice must address the employee's general eligibility, but does not address whether the reason for leave constitutes a "serious medical condition." Click here for a copy of the new eligibility form notice.

ï Rights and Responsibilities Notice: At the same time the employer issues the Eligibility Notice, it must provide a "Rights and Responsibilities" Notice, which includes information on, among other things, medical certification obligations, rights to use paid leave, rights to maintain health care benefits, as well as employer specific rules. Click here for a copy of the new Rights and Responsibilities Notice form.

ï Designation Notice: Under the new rule, within five days after receiving sufficient information to determine whether the need for leave is FMLA-qualifying, e.g., after receiving a complete certification form, the employer must issue a "Designation Notice." This extends the employer's timeframe for making this designation from two to five days. Depending on the circumstances, the rules require that specific information be contained in the notice. Only a single Designation Notice is required each year for the same FMLA-qualifying condition, regardless of whether the leave is taken in multiple blocks or intermittently. Click here for a copy of the new Designation Notice form.

A slight misstep here can become costly to the employer if it results in the employee being denied FML. Under the new regulations, interference with the right to leave creates strict (absolute) liability, entitlement to a broad range of damages, and an award of attorney fees to the employee's attorney.

Change No. 4: Bonuses Can Take FMLA Leave Into Consideration

The new regulations now allow employers to consider FMLA leave for bonus purposes, including perfect attendance awards. The only caveat is that employers treat employees taking non-FMLA leave in an identical manner.

Change No. 5: Light Duty As Part of a Worker's Compensation Program No Longer FML

Under the new regulations, an employee's time spent performing "light duty" work that is part of a worker's compensation program does not count against FML, even if the employee volunteers for light duty. Therefore the employee's right to return to his or her job is essentially on hold during the light duty period. This is one change that may catch many employers by surprise, and is therefore another possible source of liability.

Change No. 6: Military Family Member Leave is Clarified

The new regulations have clarified what rights employees have related to Military Exigency Leave. Beginning in January, employees whose family members are in the National Guard and Reserve who are called to active duty can take FMLA job-protected leave to manage the issues associated with this event. The regulations define "qualifying exigencies" as: 1) short-notice deployment, 2) military events and related activities, 3) urgent childcare and school activities, 4) financial and legal arrangements related to the call to active duty, 5) counseling, 6) time spent with the service member on rest and recuperation, 7) post-deployment activities, and 8) additional activities where the employer and employee agree to the leave.

Concluding Thoughts Ö

In this time of economic uncertainty, one thing is certain, and that is that employers will need to familiarize themselves quickly with the new FMLA regulations and the ADA amendments which both go into effect in January 2009. Employers should be updating their policies and procedures and their forms in order to prepare for the complex changes that are coming in January 2009. We suggest the following best practices for employers:

ï Modify policies and procedures in connection with the FMLA, worker's compensation, and ADA to reflect the changes that are going into effect in January 2009.

ï Update employee handbooks to reflect any changes to policies and procedures.

ï Be prepared to give to each current employee and each new employee thereafter, upon hire, a copy of the general FMLA notice.

ï If you post your general FMLA notice electronically (e.g. intranet), make sure that all of your employees have company provided access to a computer to view the notice.

ï Dispose of old FMLA forms templates and policies, and be prepared to use the new FMLA forms as of January 2009.

ï Ensure that you are aware of all timeframes and content requirements for each type of employer notification and for medical certification requests.

ï Upon employee notice of a need for leave, request a medical certification in order to quickly determine whether the need for leave qualifies under the FMLA.

ï Train all employees who take part in FMLA/ADA/worker's compensation administration to ensure full knowledge and compliance with the new regulations.

The Dunn Carney Labor and Employment Law Team is ready to assist employers with FMLA/ADA/worker's compensation compliance. We can review employee handbooks, craft policies and procedures, provide training to key personnel, and provide general guidance to ensure compliance with the myriad of changes set to go into effect in January. If you would like our assistance navigating the complex changes to the FMLA and/or the ADA, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it of the Dunn Carney Labor and Employment Law Team.

Thanks to Kelly J. Martin for contributing to this article.

Employment and Labor Law Team

Leader:Tamsen Leachman
Bob Allen
Tim Bernasek
Jack Cooper
Elizabeth Knight
Bridget Lynn
Kelly Martin
Sam Smith
Renee Stineman

December 08