Multi-step approach to Family Leave Act compliance

New regulations under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., went into effect in mid-January. While the changes are much too numerous to summarize here (they take up 207 pages in the Federal Register plus an additional 555 pages of commentary), this article gives a practical approach to what is new by providing 10 basic steps an employer can take to comply.

Are you covered? First you need to know whether you are covered by the statute.

Employers with 50 or more employees are covered by the FMLA, as well as state and federal government entities. If you are a covered entity, you need to make sure your policies and practices comply with the new regulations. In this time of downsizing, remember that even part-time, temporary, leased and contract employees are counted in determining the 50 employees needed for coverage. Also, if you had 50 employees in the past year, you are still covered for a year after your employee count dips below 50.

Order new posters. All covered employers should be sure to order new federal wage and hour posters from the U.S. Department of Labor, which include the appropriate revised language that must be posted in a conspicuous place to comply with the general notice provisions of the new regulations. This must be done, as it is required by the statute.

Revise your policies. Covered employers are required by the statute to have a written FMLA policy that is distributed to employees. For this reason, it is essential that your FMLA policy be revised to comply with the new regulations. While the Department of Labor has a form that can be used to provide the basic minimum that must be included in a policy, it is advisable to include additional provisions to tailor your policy to your own needs and provide information to both employees and managers to assist them in understanding their rights and obligations.

New military leave provisions. For 15 years there have been only three forms of FMLA leave: to care for a newborn, newly adopted or foster child; for the employee’s own serious health condition; or to care for a family member with a serious health condition. However, in January 2008, the statute was amended to add two new forms of leave for military families. The new regulations explain how to apply for the new forms of leave. “Military Caregiver Leave” is a one-time leave of up to 26 weeks in one 12-month period for employees who are needed to care for a family member in the military who has a serious illness or injury incurred in the line of duty. Note that this is the only form of FMLA leave that is 26 weeks instead of the normal 12 weeks. The other new leave is “Qualifying Exigency Leave,” which provides up to 12 weeks of leave in a 12-month period to families of the National Guard and Reserves. This leave applies when an employee needs to be absent due to a “qualifying exigency” related to a family member being called to active duty. The regulations define eight different types of qualifying exigencies related to deployments, such as taking care of child care and school arrangements, financial and legal arrangements and seeing the family member off to duty or welcoming him or her home.

Understand the employer’s notice requirements. It is critical that employers understand their notice obligations because this is the first step in handling an FMLA issue and is also where problems often arise. It is the employer’s obligation to recognize when an employee has made a request for leave that is covered by the FMLA even though the employee need not use the acronymn “FMLA.” This request, which is not always clear, triggers the employer’s notice obligations. The new regulations have helpfully collected all the employer notice provisions into Section 300, specifically 29 C.F.R. §§ 825.300 & 825.301. The regulations clarify that employers have five notice obligations: the posting requirement; the general notice obligation, which is the information that must be contained in a policy; eligibility notice, to tell an employee whether he or she is “eligible” for FMLA leave when leave is first requested; notice of rights and responsibilities, which must also be provided when leave is first requested; and designation notice, to designate the leave as FMLA leave (or not) and state how much leave an employee may take.

Understand employee’s notice requirements. The biggest change to the employee’s notice requirement applies to the timing of requests for unforeseeable leave. When leave is unforeseeable, an employee must request leave “as soon as practicable.” In the past, this phrase has meant within one to two business days. Employers have complained that waiting two business days to learn why an employee is absent can be very disruptive to a business. Therefore, DOL has redefined this phrase and shortened the time period. Now, employees must comply with the employer’s normal call-in procedures and must request leave on the same or next business day, absent extraordinary circumstances.

New timing provisions. In the past, the employer and employee ordinarily had to provide notice or information within two business days. The new regulations generally extend the employer’s obligations to five days to comply with its various notice obligations. For employees, there is no change to the timing when leave is foreseeable: The employee must give 30 days’ notice. As described above, when leave is not foreseeable, employees must now provide notice of their need for leave the same or next business day.

New certification provisions. Employers are entitled to obtain additional information from health-care providers to certify the employee’s (or family member’s) serious health condition. The medical certification now requires the health-care provider to provide additional types of facts to describe the serious health condition, which can include a diagnosis, as well as information that establishes that an employee cannot perform the essential functions of his or her job.

Prepare job descriptions to use with certifications and fitness-for-duty forms. It is advisable for an employer to have job descriptions because, under the new regulations, they can be used both with the medical certification form and for a fitness-for-duty form to return to work. For the medical certification, the doctor can be asked to certify that the employee is unable to perform the essential functions of the job due to the serious health condition. When the employee seeks to return to work, the doctor can be asked on the fitness-for-duty form to certify that the employee is able to perform the essential functions of the jobs before being able to return to work. Without job descriptions, it is difficult for the employer to establish what the essential functions of the job are.

Obtain new forms. DOL has prepared new forms that can be used to comply with the notice and certification requirements of the new regulations. Those are available on the DOL Wage and Hour Division website. The medical certification forms are numbered WH-380-E and WH-380-F. The other forms are: WH-381 (Notice of Eligibility and Rights and Responsibilities); WH-382 (Designation Notice); WH-384 (Certification of Qualifying Exigency for Military Family Leave); and WH-385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave).

If your company has not updated its family and medical leave policies to comply with the new regulations, now is the time to do so. Following these basic steps will help an employer to be in compliance with the FMLA. However, there are many more changes, nuances and gray areas that employers and employees face when actually applying the FMLA. For example, the new regulations affect the following common issues: What information can the employer inquire about to determine if the employee has made an FMLA request? When can the employer contact the employee’s doctor, and what can be discussed? When can an employer require re-certification of a medical condition? How is paid leave applied to FMLA leave? Therefore, it is advisable to seek the advice of counsel or a trained human resource professional to ensure proper compliance.
Nina Joan Kimball is a partner at the Boston firm of Kimball Brousseau, which focuses on employment law.