Holloway Human Resource Consulting

The United States Department of Labor (DOL) has released final regulations to implement, guide and interpret the Family and Medical Leave Act.  These are the first significant changes to the regulations since 1994 enactment and will affect every employer subject to the law.  The 762 pages of revised regulations become effective on January 16, 2009, 60 days from November 17, 2008, the date the regulations were published in the Federal Register.  That gives employers 30 days from the date of this HR Update before the changes go into effect.

The revised poster and optional FMLA forms are available for downloading from our Workplace Forms and Federal Posters pages.

The revised FMLA provides much needed clarification on several issues, for example reporting requirements and intermittent leave, but also adds an extra layer of administration for others. 

Significant Changes

Here is a short list highlighting some of the more significant FMLA changes, and is not all inclusive:

• Emphasis has been placed on shared responsibility and communication between the employer and employee.  Employers must notify all employees of their rights and obligations under the General Notice Obligations.
• "Continuing treatment" and "periodic treatment" have been defined for purposes of establishing a serious health condition.
• A "qualifying exigency" mentioned in the February 2008 change has been defined.
• Professional Employer Organizations (PEO) and joint employer coverage is addressed.
• Employees may be required to follow the employer's normal call-in policies for requesting leave.
• Medical and Fitness for Duty certifications, requirements and documentation are addressed.
• The issue of paid and unpaid FMLA leave is clarified.
• Addresses waiver of FMLA rights in settlement and release agreements.
• Performance and goals-based awards, such as bonuses and perfect attendance awards, may be denied to employees who have taken FMLA leave if the practice of non-entitlement is consistent with other policies.
• An employee's light-duty job assignment does not affect his/her right to FMLA leave and to job restoration.
• Employers have five days to notify employees of their eligibility to take FMLA leave; employers also have five days to notify employees of the designation of FMLA leave.
• If FMLA leave is interfered with or not designated as such in a timely manner and the employee suffers harm as a result, the employer may be liable for unspecified damages.
• An employer HR representative or leave administrator may contact an employee's health care provider without the employee's consent for clarification and authorization only, but not to obtain more information.  The employee's direct supervisor is strictly prohibited from doing so.
• The new rules covering the expansion of the FMLA for military family members adopted in February, 2008 have been incorporated. 
• The DOL has created seven new optional forms and a new poster to assist with communication and leave administration which will become available to employers as the effective date of the new law gets closer.
• The revised FMLA will require significant changes to policies, procedures and forms, as well as supervisor and employee training.  The DOL has given employers only 60 days (until January 16, 2009) to implement and comply with the new rules.

The FMLA is a major compliance obligation, and for HR professionals and those responsible for administering FMLA it is one of the significant tools of our trade.

You can view a PDF file of the final FMLA regulations as published in the Federal Register on November 17, 2008.  The new FMLA forms can be viewed at the end of the PDF file. 

Click here to read the FMLA regulations

Resources

The links below offer two great resources available at no cost for employers to get more information about the pending FMLA changes, and we are available to answer any questions and assist with policy changes, communication and training.

·         An article summarizing the FMLA changes prepared by Fisher & Phillips LLP, Attorneys at Law

Click here to read the article

·         A 90 minute on-demand webinar provided by Jackson Lewis Attorneys:

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CONFERENCE NUMBER: PB1926469
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