Nov 25, 2008

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New FMLA Regulations Overview

UPDATE 11/30/08 – I received an email from Jeff Nowak, an employment attorney at Franczek Radelet & Rose (formerly Franczek Sullivan) pointing me to an excellent executive summary they just published on the new FMLA regs.

Here’s a link.

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The Department of Labor has just released its first significant changes to the Family and Medical Leave Act since the law was passed in 1993. The regulations make significant changes to the leave available to workers, and the procedure by which the leave must be taken. The new FMLA regulations go into effect on January 16, 2009.

What follows is just a summary of the key changes made by the final rule.

Doctor Visits

The FMLA gives most employees the right to 12 weeks of unpaid leave for, among other things, a “serious health condition.” The old regulations defined “serious health condition” as any medical condition requiring two visits to a healthcare provider and an ongoing treatment regimen. The regulations clarify this confusing requirement. From now on, to qualify for FMLA leave, an employee must:

• Visit a healthcare provider within 7 days of the beginning of the incapacity; and
• Visit again within 30 days of the beginning of the incapacity.

For chronic conditions, the old regulations merely required “periodic visits” to the doctor. This has been changed to require at least two visits per year.

Substituting Paid for Unpaid Leave

The statute gives employees the ability to use their accrued personal, family, vacation or sick leave concurrently with FMLA leave, effectively substituting the unpaid FMLA leave for paid leave. The new regulations make clear that the employee still has to meet all the requirements for whatever type of concurrent leave they choose. In other words, if an employer requires 10-days notice before an employee takes vacation, an employee using vacation days concurrently with FMLA leave would have to provide the same 10-day notice.

The opposite, however, is also true. If an employer provides exceptions to employees taking paid leave for normal reasons, it must provide the same exceptions to any employee using paid time off concurrently with FMLA leave.

Employee Notice

The current rules have given employees leeway to inform their employer of FMLA leave up to two business days after taking a day off, regardless of whether they could have notified the employer sooner. The new rules require an employee to follow the employer’s usual and customary call-in procedures when reporting FMLA leave-related absences, absent unusual circumstances.

Light Duty

The final rule states that time spent performing “light duty” tasks will not count against an employee’s FMLA leave, and the employee’s right to post-leave restoration remains intact while on “light duty” status. In other words, if an employee is voluntarily doing light duty work, he is not on FMLA leave, but retains his right to be restored to his old position.

Employer Notice

This is one of the most significant changes to the law. The old regulations had a maze of notice requirements for employers, most of which have now been consolidated. Under the new rules, an employer must provide general notice of FMLA rights to all employees (i.e. through a break-room poster or employee handbook), an eligibility notice, a rights and responsibilities notice, and a designation notice when leave is taken. The time to provide these notices ranges from two to five days of learning of an employee’s leave.

Medical and Fitness-for-Duty Certifications

Because of health privacy concerns, certain changes have been made to the medical certification process. Under the new rules, anyone contacting the healthcare provider on behalf of the employer must be a healthcare provider, HR professional, leave administrator or management official. Plus, the employee’s direct supervisor, regardless of title, cannot contact the employee’s healthcare provider. Employers may only ask for information on the certification form, and cannot demand the healthcare provider give a diagnosis, though they are permitted to do so at their discretion. If a condition lasts longer than six months, an employer can request a new certification.

An employer may require an employee to provide a fitness-for-duty certification where reasonable job-safety concerns exist, or to prove the employee can perform the “essential functions” of his or her job.

On the web:  .pdf of final regs (Warning: large file)