• New FMLA Regulations Effective January 16, 2009
  • November 23, 2009 | Author: Kelly Brown
  • Law Firm: Jaburg Wilk, P.C. - Phoenix Office
  • The FMLA was enacted in 1993. It requires employers to grant eligible employees up to 12 work weeks of unpaid leave during any 12-month period due to a serious health condition, to care for an immediate family member with a serious health condition, to care for a newborn child, or for adopting a child or caring for a foster child.

    It applies to government agencies and most business that employ 50 or more employees. To be eligible, employees must have worked for their employer for at least 12 months and must have worked 1,250 hours during the 12-month period immediately before the leave. The 12 months of service need not be consecutive; however, service prior to a five-year break in service may be generally ignored.

    The Department of Labor (“DOL”) has announced the new regulations will go into effect on January 16, 2009. This means employers must abide by the new regulations and if they are required to post FMLA policies in the workplace, they must have updated FMLA postings displayed Jan. 16, 2009.

                                                     New Regulations:

    On November 14, 2008, the DOL released the new, final regulations to the FMLA. The complete text of these regulations can be found at: http://www.dol.gov/federalregister/HtmlDisplay.aspxDocId=21763&AgencyId=10&DocumentType=2. The text is over 200 pages in length. Highlights of the changes that will impact most employers are:

                                Employee’s responsibility to provide notice

    An employer can now require employees to follow the employer's own call-in policies to provide notice of planned leave. The new regulations provide that employees must give notice of unexpected FMLA leave according to their employer's usual and customary call-in procedures, absent unusual circumstances. In general, this means that employees must report an absence before the start of their shift, if the employer has a policy requiring them to do so. Previously, employees could wait until two days after an absence to notify the employer.

                                                    Employer’s Obligations

    The new regulations require employers to provide employees with a general notice about the FMLA, an eligibility notice, a rights and responsibilities notice, and a designation notice.

                                                 Serious Health Conditions

    To qualify for FMLA leave because of a chronic condition, employees now must certify that they visited a doctor at least twice a year regarding that condition. The regulations clarify what kinds of conditions and treatments qualify as "chronic conditions," "serious health conditions," and "qualifying treatments." For example, the new regulations address the definition of serious health condition that requires an employee to be incapacitated for more than three calendar days plus "two visits to a health care provider." The new regulations require that the two visits occur within thirty days of the beginning of the period of incapacity and the first visit to a healthcare provider must occur within seven days of the first day of incapacity. The definition of serious health condition requires incapacity of more than three calendar days and continuing treatment by a healthcare provider. Under the new regulations, the employee's first visit to a healthcare provider must occur within seven days of the first day of incapacity.   

                                                        Fitness for Duty

    Employers may now require returning employees to complete "fitness for duty" tests if there is a possibility that performing the job will raise a significant risk of harm to the employee or others. 

                      Rules on substitution of paid leave for unpaid leave

     The new regulations also give additional guidance regarding the substitution of paid leave for FMLA leave and new notice requirements for employers.

                                              Military Caregiver Leave

    There is a 12-month period for leave under the military family provisions. The 12-month period starts when the employee begins to use leave and concludes 12 months later. Employers cannot require that the 12 months be limited to one calendar year, i.e. January ¿ December for military families. Previously, only spouses, parents and children of service members were eligible for FMLA leave. Now, grandparents, aunts, uncles, first cousins and any relatives that service members designated as next of kin are eligible to take this leave. Relatives may take leave only once per injury. Each qualifying relative may take leave again if the service member relative suffers another injury. Such leave, however, is only available so long as the service member remains in the military. Another new benefit is available to relatives of those called to active duty in the National Guard and the Reserves, who may now take up to 12 weeks of leave in case of a qualifying exigency. Qualifying exigency is broadly defined and may include

    *short notice deployment
    *military events and related activities 
    *child care and school activities 
    *financial and legal arrangements 
    *counseling o rest and recuperation 
    *post-deployment activities 

    Miscellaneous changes and clarifications

    Employee privacy: In contrast to earlier versions of the regulations, a new provision forbids direct supervisors from obtaining employees' medical information when FMLA certifications are needed. If an employer deems a medical certification incomplete or insufficient, the new regulations require the employer to specifically designate in writing what information is missing, and give the employee seven days to cure the deficiency. The new regulations also provide that employers may request a new medical certification each leave year for conditions that last longer than a year.

    Light duty: Time an employee spends on "light duty" does not count against the employee's FMLA leave entitlement.

    Intermittent leaves: The new rule also clarifies how employers must treat employees who take intermittent family leave -- for example, an employee who takes off two hours every day to take her daughter to cancer treatment. Generally, employers must calculate such leaves in increments of one hour or smaller. Employers must also track intermittent FMLA leave as they would track other types of leave.