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CHANGES TO FMLA
How To Remain In Complaince

1/21/2009 - The U.S. Labor Department (DOL) published new regulations on November 2008 with regard to the Family and Medical Leave Act (FMLA). These are the first significant changes to the regulations since its 1994 enactment and will affect every covered employer. Sandy has often remarked that FMLA is a regulation that is “noble in its purpose but exceptionally complicated in its administration.” We’ve included a good deal of material in this report, but please remember that Seay Management is only a phone call or an email away, and we are always very glad to talk with you, and help you resolve your FMLA issues.

These new regulations address and define the two new forms of military leave created earlier this year, along with minor tweaks, and changes to the original FMLA regulations. Some of the more significant topics are summarized below. Employers must implement the new changes as of January 16, 2009.

• NEW MILITARY LEAVE REGULATIONS

The new regulations (1) define a new type of FMLA leave and (2) refine Military Caregiver Leave. Qualifying Exigency Leave is the new leave covered under FMLA that is available to cover non-medical demands that arise for employees, if a family member is on active duty or on call to active duty status. Military Caregiver Leave is for an employee to care for a family member who has a serious injury or illness incurred in certain types of military duty.

An important difference between these two types of leave is that Qualifying Exigency Leave is subject to the usual maximum of 12 weeks total of FMLA leave during a period of one year. In contrast, Military Caregiver Leave has a maximum of 26 weeks in a single 12 month period.

SUMMARY OF THE TWO NEW FMLA TYPES

MILITARY CAREGIVER LEAVE: This is leave for an employee to care for a family member with a serious injury or illness related to certain types of military service. The family member must be a “covered service member” means that he or she must be a member of the Armed Forces, including the National Guard or Reserves. The family member must be undergoing medical treatment, recuperation, or therapy, or must be in an outpatient status, or must be on the temporary-disability retired list because of serious injury or illness. Serious injury or illness means an injury or illness incurred by the member in the line of duty, on active duty in the Armed Forces, that may render him or her medically unfit to perform the duties of the member’s office, grade, rank, or rating.

An eligible employee is entitled to 26 workweeks of leave to care for a covered service member in a “single 12-month period.” The “single 12-month period” begins on the first day the eligible employee takes FMLA leave to care for a covered service member and ends 12 months after that date, regardless of the method used to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. If employees do not use the full 26 workweeks period, the remaining part of their leave entitlement is forfeited.

QUALIFYING EXIGENCY LEAVE: There are eight types of “qualifying exigencies” listed in the new regulations which may qualify for this type of FMLA leave:

• Short-notice deployment

• Military events and related activities

• Childcare and school activities

• Financial and legal arrangements

• Counseling

• Rest and recuperation

• Post-deployment activities

• Additional activities

NEW FMLA ISSUES (NOT RELATED TO MILITARY LEAVE)

New FMLA Poster: The Department of Labor has issued a new FMLA poster. The poster must be displayed where it can be readily seen by employees and applicants.

Employer General Notice Obligation: Covered employers must provide a general notice to each employee outlining their FMLA rights and the best way to do this is by including it in your employee handbook. If you do not have an employee handbook, the notice must to be distributed to each employee upon hire. Employers also may distribute the notice electronically.

Other Important Employer Notices: The new regulations require employers to issue a personalized “Eligibility Notice” within five days of either, 1) a request for leave, or 2) after learning that a leave may be FMLA-qualifying. This notice should address an employee’s general eligibility in terms of months and hours worked, but not whether the reason for the leave constitutes a qualifying “serious health condition.” At the same time you issue the Eligibility Notice, you must also issue a written “Rights and Responsibilities Notice,” which must include information such as medical certification obligations, rights to use paid leave, rights to maintain health care benefits, potential liability for repayment of health insurance premiums, and also includes employer-specific rules, (such as periodic return to work reports).

The new regulations require employers to issue a written “Designation Notice” within five days after receiving sufficient information to determine whether the need for leave is FMLA-qualifying. If the leave is qualifying, the Designation Notice must also address the amount of leave that will be counted against an employee’s annual allotment, and whether the employer will require a fitness-for-duty certification prior to return to work.

If the amount of leave needed is known at the time the employer designates leave as FMLA-qualifying, the employer must notify the employee of the amount of time (hours, days or weeks) that will be counted against FMLA entitlement. If this is not possible because, the employer must provide this information upon request by the employee, only once in a 30-day period and only if leave was taken during that period.

Fitness-For-Duty Certifications: If the employer requires a fitness-for-duty certification, it should be based on the “essential functions” of an employee’s job, and those functions must be outlined in the Designation Notice.

Eligibility – The 12 month Service Rule: Although the DOL initially proposed to set five years as the maximum break in service that would allow an employee to count prior service towards eligibility, the final regulation extended this limit to a seven-year standard (longer if the break was the result of certain military service). As a result, an employee who has worked less than 12 months during a current period of employment may still be eligible for FMLA if he or she worked a total of twelve months during the prior seven years.

Serious Health Condition: The new regulations state that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity, and the first must occur within seven days of the start of the incapacity. The same is true for a serious health condition occasioned by three consecutive days of absence plus a regimen of continuing treatment. Again, the first visit to a health care provider must occur within seven days of the start of the incapacity.

With respect to a qualifying “chronic” serious health condition, the regulations define the requirement of “periodic visits to a health care provider” as at least two visits to a health care provider per year. Employers may not require more visits for this purpose.

Physician Certification: An employer may directly contact an employee’s health care provider to authenticate or to obtain a clarification of information required by a certification form. Because of privacy concerns the new rules prohibit an employee’s “direct supervisor” from making these inquiries, limiting this right to a “health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official.”

Employee Notice: Under the new regulations, employees must follow their employer’s normal and customary call-in procedures for reporting an absence, unless there are unusual circumstances.

Paid Leave: Under the new regulations, an employer may 1) restrict the right to use any form of paid leave consistent with its policies for similar, but non-FMLA qualifying, reasons; and 2) apply its normal procedural rules subject to which paid leave was accrued. For example, if your paid sick-leave policy prohibits the use of sick leave in less than full-day increments, an employee would have no right to use less than a full day of paid sick leave, regardless of whether the sick leave was being substituted for unpaid FMLA leave.

Similarly, if your paid-PTO policy requires two days’ notice for the use of PTO leave, an employee seeking to substitute such paid leave for unpaid FMLA leave would need to provide two days’ notice. Rules such as this should be addressed in the Rights and Responsibilities Notice.

Light-Duty Work Does Not Count Against Twelve Weeks: The new regulations clarify that time spent performing light duty work does not count against the annual 12-week allotment of FMLA leave, and the employee’s right to job restoration is held in abeyance during the light duty period.

Waiver of Rights: An employee may not waive FMLA rights in advance, but may do so after the fact, commonly as part of a settlement or severance agreement.

• IN CONCLUSION

WHAT SHOULD YOU DO NOW?

*Update Your Employee Handbook

*Update Your Current FMLA Forms

*Provide Training for Your Management Team

*Post Current FMLA poster where visible to Applicants and Employees

*Ensure your job descriptions are ADA (Americans’ With Disabilities Act) compliant and contain the correct “essential functions” of the job based on the actual physical and mental requirements.

So . . . FMLA . . . the regulation that is “noble in its purpose but complicated in its administration.” We are here to help you solve the puzzle and unravel the mystery, and look forward to talking with you soon.



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