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New FMLA Regulations – What Employers Need to Know – Part I

Posted in Laws and Regulations

courtesy morgue file "paperwork" - As I reported on Friday, the U.S. Department of Labor has released final regulations implementing the Family and Medical Leave Act (FMLA).  The regulations (which you can dowload here) become effective on January 16, 2009.  At 750 pages, you need a book just to summarize the changes (and I’m sure one of the legal book publishers out there is already fast at work.)

60 days may seem like a long time away, but with the holidays coming up, these new regulations leave employers will little time to make the changes. Add to the fact that the ADA Amendments go into effect on January 1, 2009 and this represents a huge potential minefield.

 

For the remainder of the week, I’ll be summarizing what employers need to know now about the FMLA:

 

The Rules on What Employers are Covered by FMLA Are the Same, But Connecticut’s Rules Still Apply

Employers may first ask if they are covered by the FMLA.  The rules on who is a covered employer (as determined by the number of employees) haven’t changed.  Importantly, Connecticut’s FMLA rules (which differ in some important ways from the federal FMLA) haven’t yet been affected by this change. I’ll try to note, in an upcoming post, some of the differences between the two, but for now, employers in Connecticut should tread carefully when adopting any blanket changes as a result of the federal FMLA, without reviewing state law (and consulting an attorney where needed.)

 

The Important Takeaway From the New Regulations is Improved Communications and Collaboration

Overall, the new regulations require employees and employers to communicate better.  Whether its requiring more notices from the employer, or more information from employees, the regulations suggest that "hiding information" is frowned upon.  As a result, employers will need to update their policies and forms regarding FMLA.  Employees will also need to provide more updates about their leave, including providing sufficient notice where possible. 

 

Lots More Notice Requirements and New Forms to Use for Designating Leave

  • For employees, they must now follow their employer’s call-in policies regarding absences. Thus, if the employer has a policy of requiring employees who are going to be absent to call-in before work, FMLA-eligible employees must do at least the same. 
  • For employers, there are two new notice requirements. Employers will now need to use two forms (instead of the prior one): the first will tell employees of their FMLA eligibility and rights; the second will formally designate the leave as FMLA leave. Employers will now be required to use a new form (which had been optional) that tells employees of their eligibility to take leave within 5 business days. 
  • If employees are eligible for FMLA leave, then they must be given a notice of “Rights and Responsibilities” which tells employees of several obligations, including that they must provide medical certifications. 
  • Clarifying a prior issue, employers can now provide retroactive notice so long as the delay doesn’t cause any harm to the employee. In addition, employees and employers can agree that leave be retroactively designated as FMLA leave. 
  • Overall, if employers have been using any of the optional forms, there are several new forms available for use as well including new certifications and designation of leave forms. 

In upcoming posts, we’ll cover some of the other changes. Here are some previews:

  • New regulations defining what is a “chronic condition” and other parameters for chronic conditions and intermittent leave;
  • New rules that prohibit direct supervisors from getting employee’s medical information;
  • New guidance on how to substitute paid leave for FMLA leave;
  • New medical certifications that distinguish between employee and family member “serious health conditions”
  • Information on the “Bermuda Triangle” – the interplay between the ADA, FMLA and workers’ compensation. 
  • More guidance on when employers can request medical certifications and recertifications as well as fitness for duty certifications. 

Lastly, there are new rules that will govern military leave as well. The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.

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