On November 17, 2008, the Department of Labor published final revised regulations to implement the first-ever amendments to the 15-year-old Family and Medical Leave Act (FMLA). These new regulations become effective on January 16, 2009.
The amendments touch upon many aspects of the FMLA and generally clarify the rights and responsibilities of employees and employers under the FMLA. Below are several key changes relating to provisions that employers should consider when updating their policies and practices in order to be in compliance by January 16, 2009. This list is not exhaustive. Employers should review the full text of the FMLA revisions on the Department of Labor’s website. http://www.dol.gov/whd/fmla/
Eligible Employees: To be eligible for FMLA leave, an employee must have been employed for at least twelve months by the employer, although that period need not be consecutive. Employers must now consider periods of prior employment up to a period of seven years. Limited exceptions apply. Employer Notice Obligations: Employers are required to provide employees with enhanced notice about eligibility and rights and responsibilities for taking leave. Employers are required to provide employees with four notices, all available at the website listed above. These include (1) a general notice published in the employee handbook or other written benefits communication, (2) an eligibility notice provided to the employee within five days from the date the employer becomes aware of the need for leave, (3) a notice of rights and responsibilities provided at the same time as the eligibility notice, and (4) a designation notice which must be in writing and provided to the employee within five business days of the employer knowing that the leave is FMLA-qualifying. The revised regulations provide detailed information about what each notice should include.
Employee Notice Obligations: Employees must provide at least 30-days notice for foreseeable leave, or if that is not possible, notice must be given as soon as practicable. Notice for unforeseeable leave must be provided as soon as possible. The regulations set forth consequences if an employee does not provide proper notice of his or her need for FMLA leave.
Medical Certification Process: When obtaining medical certification for leave, the employer representative that contacts the employee’s health care provider must be a health care provider, human resource professional, leave administrator or management official. In no case may the employee’s direct supervisor contact the health provider. Employers may not ask health care providers for additional information beyond that required by the certification form. An employer may request a certification in writing five business days after the employee provides notice of leave and the employee must provide a certification within fifteen days after the request.
Certification Process Timing: Employers may request a new medical certification each leave-year for medical conditions that last longer than one year. For a condition described as “lifetime” or “unknown” the employer may request recertification of an ongoing condition every six months in conjunction with an absence.
Fitness-For-Duty Certification: Employers may enforce uniformly-applied policies that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. An employer may now require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Also, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.
Waiver of Rights: Employees may voluntarily settle their retrospective FMLA claims without court or DOL approval. Waiver of prospective FMLA rights is prohibited.
Military Family Leave: Eligible employees who are family members of covered service members are entitled to 26 work weeks of leave in a single 12-month period to care for a covered service member with an illness or injury incurred in the line of duty on active duty. In addition, family members of the National Guard and Reserves may take 12 work weeks of FMLA job-protected leave for any qualifying exigency arising out of the fact that a covered military member is on active duty or called to activity duty status.
Keesal, Young & Logan Employment Group
