FMLA Changes You Need to Make Now

by Mary Pille, Employers' Association

The new FMLA rules go into effect January 16, 2009. Are you prepared? The Department of Labor released final regulations on November 17, 2008, covering the Family and Medical Leave Act (FMLA) and addressing new military family leave entitlements for employees. What didn’t change? Employers that are affected by FMLA are private employers with 50 or more employees in a 75-mile radius for each working day during each of 20 or more weeks in the current or preceding year. All public employers are covered, regardless of size. There are also special provisions for teachers and other instructional employees of public and private elementary and secondary schools.

Below are the summaries highlighted by EA’s supplier partner, Business and Legal Reports, of some of the significant revisions included in the final rules.

Serious Health Condition. While the rule retains the six individual definitions of “serious health condition,” it adds guidance on some regulatory matters. First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity, plus two visits to a healthcare provider, the two visits must occur within 30 days of the period of incapacity. The first visit must occur within seven days of onset of incapacity. Second, it defines “periodic visits to a healthcare provider” for chronic serious health conditions as at least two visits to a healthcare provider per year.

Intermittent Leave. The final rule clarifies that employees who take intermittent FMLA leave have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to unduly disrupt the employer’s operations.

Employee Notice. The final rule states that when an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

Gaps in Service. The final rule adds a new paragraph that addresses the requirement that employees are eligible to take FMLA leave only if they have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave. The final rule states that, although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of seven years or more need not be counted.

Light Duty. Under the final rule, time spent in “light-duty” work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light-duty period. If an employee is voluntarily doing light-duty work, he or she is not on FMLA leave.

Perfect Attendance Awards. The final rule changes how perfect attendance awards are treated to allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave—but only if the employer treats employees taking non-FMLA leave in an identical way.

Medical Certification. In the final rule, the department adopted a change that allows employers to contact the employee’s healthcare provider directly. An employer may do so for two purposes only: clarification and authentication of the medical certification. The employer may request no additional information beyond that included in the certification form.

In response to privacy concerns expressed by employees, the department added a requirement to the final rule that specifies the employer’s representative contacting the employee’s healthcare provider must be a human resource professional, a leave administrator or a management official, but in no case may it be the employee’s direct supervisor.

The revision also specifies that the employee is not required to permit his or her healthcare provider to communicate with the employer. However, if the employee denies the employer permission and doesn’t otherwise clarify an unclear certification, the employer may deny the designation of FMLA leave. However, prior to making any contact with the healthcare provider, the employer must first provide the employee an opportunity to resolve any deficiencies in the certification.

Fitness for Duty Certification. The final regulation also clarifies that employers may require a fitness-for-duty certification to address an employee’s ability to perform essential job functions. However, if the employer does have such a requirement, the employer must provide the employee with a list of those essential job functions no later than the “designation notice” and specify in the designation notice that the fitness-for-duty certification must address the employee’s ability to perform those essential functions.

Military Caregiver Leave. The final rule implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves. The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs—”qualifying exigencies.” The rule defines “qualifying exigencies” as: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities where the employer and employee agree to the leave. iBi

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