Recently, the U.S. Department of Labor issued a final rule updating the FMLA regulations. The final rule marks the first big change for FMLA regulations and implementations in 15 years. The regulation guides in the implementation of the new military leave benefit, enacted as part of the 2008 National Defense Authorization Act.

Here are some of the more significant changes that have been made:

• Enhanced General Notice Obligations:

Covered employers must post a general FMLA notice even if they have no FMLA- eligible employees. Employers that don’t have a handbook or written materials describing benefits and leave must provide the general FMLA notice to each employee when they are hired.

• Designation Notice:

The final rule extends the time for employers to provide notice to an employee that the employee’s leave will be protected by the FMLA from two business days to five business days.

• More Time to Request Medical Certifications:

Employers will have 5 days to request certification after employees give notice of need for leave or, in the case of unforeseen leave, the date employees commence leave.

• Eligibility Determination:

All FLMA absences for the same qualifying reason are considered a single leave and the employee maintains eligibility for leave throughout the applicable 12-month period.

• Notice of Certification Deficiencies:

Employers must notify employees in writing of additional information necessary to complete the medical certification and allow employees seven calendar days to provide additional information.

• FMLA Medical Certification Even When Substituting Paid Leave:

Upon request, employees must provide FMLA medical certification even when substituting paid leave.

• New “Rights and Responsibilities” Notice:

If employees are eligible for FMLA leave, then they must receive a written notice of “Rights and Responsibilities” at the time of their eligibility notice.

• Retroactive Designation:

Retroactive notice is permitted if the employer fails to provide timely notice and the delay does not cause employee harm or injury.

• Employee Notice:

Employees must follow the employer’s “usual and customary” call in procedures to report absences unless there are “unusual circumstances.”

• Medical Certification Process:

The new rule allows HR professionals to contact an employee’s health care provider for the sole purpose of clarifying medical certification.

• Recertification Permitted:

Employers can request medical recertification for continuing, open-ended conditions every 6 months, rather than after passage of the specified minimum duration of the condition.

• Serious Health Conditions:

Employees must be incapacitated for more than three calendar days, plus “two visits to a health care provider.” The new regulations require the two visits occur within 30 days of the beginning of the period of incapacity. The first visit to the healthcare provider must occur within seven days of the first day of incapacity.

• Chronic Conditions:

Employees have to certify they visited a doctor at least twice a year for the condition to have a “chronic condition” that qualifies for FMLA leave.

• Fitness-For-Duty Tests:

Employers can require employees to take “fitness-for-duty” tests for employees returning from intermittent FMLA leave if the job raises significant risk of harm to themselves or others.

• Light Duty:

When employers place injured or ill workers on light duty, the time on light duty doesn’t count against the employee’s leave entitlement.

• Disputes:

Employers and employees must discuss and document FMLA disputes.

• Increased Liability:

Failure to provide required written notice can be considered “interference” with an employee’s rights leaving the employer open to damages including “any other relief tailored to the harm suffered.”

• Military Family Leave Amendments:

The new regulations clarify the Military Family Leave Amendments enacted earlier this year.

• Forms:

New and exciting forms! (Okay, they won’t be exciting, but they are new and can be found on page 731)

COUNSEL TO MANAGEMENT:

The new regulations become effective January 16, 2009. Basically, the new regulations allow employers more control over when employees can take leave. Management gets new tools to administer FMLA leave more efficiently and to decrease the potential abuse of intermittent leave rights. However, Management must also now update FMLA policies and forms and communicate more effectively, both verbally and in writing, with employees.

Management should utilize from now until January 16, 2009, to provide training on the new regulations and establish procedures for compliance once the regulations become effective. Management can access the complete text here, but should keep in mind the complete text is 762 pages. Navigating through the new FMLA and ADA developments may prove to be one of the most significant workplace issues for 2009.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.