Tips from Presentation on New FMLA Regulations: Forms, Links & FAQ

UPDATED 1/16/09

We had a great turnout today for our breakfast roundtable on the new FMLA regulations. I want to particularly thank several blog readers for coming. 

But in case you missed it, you’re not out of luck.  Here’s some of what we discussed and what you need to know for Friday – the date the new FMLA regulations become effective. 

• Connecticut rules still apply – Connecticut has its own FMLA law and that hasn’t changed with the new federal FMLA regulations. Thus, at least in the short term, it’s going to be a bit of a mess to determine which regulations should apply. A rule of thumb is that where the state law or regulation provides more protection to the employee than federal law, state laws are going to apply.  You can find the CTFMLA regulations here, and a comparison of the CTFMLA regulations with the old federal regulations here for a bit of guidance. I’ll try to tackle the intersection between the Connecticut regulations and federal regulations further in an upcoming post. [UPDATE: The CTDOL released guidance on January 15, 2009 comparing the two; I have summarized it in a post here.]
   
• The new regulations haven’t changed the underlying statute – Despite all the fuss over the new regulations, the underlying FMLA statute hasn’t changed (save for some new servicemember and exigency leave provisions). Thus, if you are an employer that wasn’t covered under the FMLA before, you’re not going to be covered now.  The DOL has a website devoted to answering these types of questions available here.
   
• Don’t forget the DOL’s website as a resource – I’ll let you in on a little secret that we talked about at the presentation; when lawyers have questions, they often go to look at the same resources that are the public has access to as well. Sometimes, we just know where to look. Well, now you can too. 

  The DOL has a website devoted just to the new FMLA regulations. What’s on there? Lots, including:

  • The full text of the Final Regulations 
  • A Fact Sheet on the Final Regulations 
  • A Fact Sheet that just discusses the non-military (or regular FMLA) regulations
  • A Fact Sheet that just discusses the military regulations
  • A Revised FMLA Poster that employers should use in handbooks, intranets or bulletin boards
  • Even more importantly, the DOL site as the new and revised forms that need to now be used including:
    • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
    • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
    • WH-381 Notice of Eligibility and Rights & Responsibilities
    • WH-382 Designation Notice
    • WH-384 Certification of Qualifying Exigency For Military Family Leave
    • WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
  • The most helpful feature may seem the least obvious, a list of FAQs (or Frequently Asked Questions) for both the Military regulations and the Non-Military regulations

• Start using the new forms, certifications and postings on Friday – To simplify (and perhaps oversimplify so look at the new regulations for more details), there are new rules on when notices should be given and what they should contain. Here are some highlights:
  • Form WH-381 must be given to employees within 5 business days of the leave request.
  • If the employer will require the employee to certify the leave, the appropriate certification form (either WH-380-E, 380-F, 384, 385), should be given to the employee (along with the notice form) also within 5 business days of the leave request.
  • Once a designation has been made, there is a new designation notice (WH-382) that also must be provided; this must be done within 5 days of the designation determination. A new form should be provided if the designation changes over time. 
  • Lastly, to the extent that you are not providing each employee with a copy of their rights individually, the employer should also use the new FMLA poster available here. 

• Update your FMLA policies – To the extent that you have a policy on FMLA, the policy should be revised to at least include the information in the notice above. 
   
• Don’t overlook the new military leave regulations – Although the statute regarding new military leave has been in place for a while, the regulations implementing and interpreting the statute are new.  If you have employees who have family members who are injured servicemembers, or if you have employees who have been called to active duty, you need to familiarize yourself with these rules.  The rules allow for broader leave that employers may be accustomed to.

Finally, if you need more information about the FMLA, you can check out my previous posts on the subject here.