New FMLA Regulations Offers Employers Tools to Control Abuse

One of the more frustrating issues employers face is preventing and stopping leave abuse under the Family Medical Leave Act of 1993. In a rare gift to employers, however, the Department of Labor recently promulgated regulations, which went into effect on January 16, 2009, that give employers new tools to combat such abuse. These tools include:

• Tougher Employee Notice Requirements.

Employees seeking foreseeable FMLA leave may be required to comply with their employer’s usual procedural requirements, which can include a written notice to the employer setting forth the reasons for the leave, as well as its anticipated duration. Employees seeking unforeseeable leave can likewise be required to comply with such policies, except in emergency situations. Failure to comply with the employer’s notice requirements can result in the leave request being denied, rather than merely delayed.

• Verification and Clarification of Medical Certifications.

Employers must no longer tolerate incomplete, vague, ambiguous or non-responsive certifications. Rather, the new regulations permit employers to require employees to cure any deficiency in a certification within seven (7) days, or face denial of the leave request. Further, employers now have the right to contact directly the employee’s health care provider under certain circumstances. Specifically, employers may contact the health care provider to obtain clarification of the certification (e.g., to understand handwriting or the meaning of a response) and for verification purposes (e.g., to verify the certification was actually completed by the health care provider).

• Meaningful Fitness for Duty Certifications.

Employers are now permitted to require that a fitness for duty certification specifically address an employee’s ability to perform the essential functions of their job. To take advantage of this new provision, however, the employer must have provided the employee with a list of his or her essential functions by no later than the time the leave is designated as approved FMLA leave.

The foregoing represents only a summary of some of the more important changes to the FMLA regulations. In addition to the points addressed above, the regulations provide many more useful tools, and some new challenges. It is essential that every employer covered by the FMLA understand these new changes thoroughly and immediately begin implementing them into their employment policies and practices.