How the new FMLA regulations affect your company

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Published April 2009

The Department of Labor (DOL) has recently issued new regulations providing some interpretation of FMLA , which took effect on January 16, 2009. These regulations were intended to provide clarity to workers and employers regarding their rights and responsibilities under the Act.

So what does this mean for employers? It provided clarity in the “fuzzy” areas which also means employers must strictly comply with its requirements. Here are some important steps for employers to comply with the new FMLA requirements :

  1. Replace Your Old FMLA Posting: The DOL has issued a new poster for the Family Medical Leave Act. It can be downloaded at http://www.dol.gove/esa/whd/fmla/finalrule/fmlaposter.pdf
  2. Create or update company FMLA policy: Employers subject to FMLA requirements – those with 50 or more employees in a 75 mile radius should have a written policy that communicates their compliance with the Act. The policy should address qualifying circumstances, the company’s requirements for medical certification, and other FMLA practices the company follows such as whether or not the use of paid time off is required as part of the FMLA leave.The DOL has made it clear that all leave of absence policies should be consistent and that the paid time off use is the same under all leave of absence policies. Therefore, all leave of absence and paid time off policies should be reviewed for consistency.
  3. Comply with two new FMLA qualifying reasons for leave:
    1. Employee’s care is needed for a spouse, child, parent or next of kin (defined as the nearest blood relative of a covered service member) with an injury or illness incurred on active military duty.
    2. Employee has a “qualifying exigency” arising out of the fact that a parent, spouse, or child is on active duty or has been notified of a call to active duty.The seven factors of a qualifying exigency are:
      1. Short notice deployment – 7 days of leave beginning when the military member is notified of deployment.
      2. Military activities related to the call of active duty.
      3. Childcare and school activities.
      4. Make or update financial or legal arrangements.
      5. Counseling
      6. Up to 5 days per leave of rest and recuperation time to spend with military members on a short term leave.
      7. Up to 90 days of leave following termination of active duty status post-deployment activities.
    3. The two new qualifying reasons entitle the eligible employee up to 26 weeks of unpaid leave in a single 12 month period.
  4. Update your Notice and Certification Forms: The FMLA previously utilized one optional form for employers, known as the WH-380, Certification of Health Care Provider and that they had to provide to employees within two business days after employee gave notice.The new regulations attempt to clarify communications between the employee and employer by providing two new optional medical certification forms that must be provided within five business days after the employee give notice. One form is for the employees own serious health condition and the other form is for the serious health condition of a family member. Employers are also now required to provide employees with a Notice of Eligibility when it is believed that an employee may have an FMLA-qualifying absence and a Designation Notice when the employee’s absence has been designated as protected under the law.
  5. Look at Bonus and Award Payment Policies: The current regulation entitles employees to unconditional pay increases and provides narrow exception for those on leave without pay. This caused many employers to be confused on how to interpret the regulation for bonuses and perfect-attendance awards. The new regulations state that an employer can deny an employee bonus or award if payment of the award is based on a specified goal and the employee has not met the goal because of the FMLA absences. Keep in mind, other employees on an equivalent leave status must be treated the same and your policies must reflect this.
  6. Look at Holiday Time Tracking: The FMLA regulations now define the instances in which an employer may count a holiday as FMLA leave. The new regulations state that an employer may count a holiday as FMLA when the employee is on FMLA the entire week in which the holiday falls. If an employee works for part of the week in which the holiday occurs, then the holiday does not count as FMLA leave. Again, keep in mind your policy must reflect this new practice.
  7. Look at Overtime Policies: If an employee is required to work overtime but is unable to do so because of FMLA leave, then the hours of overtime that the employee would have worked are counted against the employee’s FMLA entitlement. Any overtime that is voluntary or discretionary would not be counted against the employee’s leave. Be sure to update your policies to reflect these practices.
  8. Ensure Privacy: In order to protect employee health information, the final regulations indicate those contacting health care providers in order to obtain medical certifications must be either a Human Resources professional, leave administrator, or a management official. Under no circumstance may the individual be the employee’s direct supervisor. Those permitted to contact health care providers may not ask for additional information beyond what is required in the certification form. However the individual can ask for clarification of what is on the certification form and if the absences the employee has had are consistent with the condition.
  9. Check State Requirements: Many states have their own family and medical leave (FML) laws. Although some state FML laws mirror the federal laws, others provide different provisions and/or cover employers who may not be subject to the federal Act. Bottom line is employers must comply with the law, state or federal that provides for greater employee rights.
  10. Retain FMLA Records: The FMLA requires employers to retain the following records for a three year period. A record of dates FMLA leave is taken, the hours of FMLA leave taken if in increments of less than one full day, copies of all FMLA notices, records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave, and FMLA related medical records and medical certification or re-certification documents.

Prepared by HROI, LLC for BASIC’s Newsletter
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