Client Alert - Employment Law Update
DOL promulgates new FMLA Regulations
The U.S. Department of Labor recently issued new regulations, implementing the Family and Medical Leave Act (FMLA). The new rules are the first significant changes to the FMLA regulatory scheme in over ten years, and will affect every employer subject to the law. The regulations take effect January 16, 2009.
On November 17, 2008, over 700 pages of new regulations were published that deal with everything from employee eligibility, required notices, and the definition of "serious health condition." Some highlights are:
Eligible employee
The new regulations greatly expand the potential elibility of employees. Although the standard for eligibility has long been 12 months and 1,250 hours of non-continuous employment, the new rules clarify standards for breaks in service. Now, if an employee has a break in service of seven years or less, the time prior to the break counts toward eligibility.
Employer notice requirements
The new rules also provide more guidance concerning notice requirements. A General Notice, explaining the FMLA's provisions and an employer's procedures, can now be disseminated electronically as long as it is accessible to all employees and applicants. Employers are still allowed to post paper notices, or to do so in an employee handbook. The DOL does provides sample forms that employers can use.
Two other notice periods have been extended from 2 to 5 days. Upon receiving notice of an employee's request for leave, employers must notify the employee of his or her eligibility, specifying at least one reason for a denial. In addition, every time that an Eligiblity Notice is provided, an employer must also provide a Notice of Rights and Responsibilities.
Secondly, once an employer has enough information to determine whether leave is being taken for a reason that qualifies, it must provide a Designation Notice. This notice has to specify the amount of leave designated as FMLA-qualifying, any additional information that is needed, whether paid leave must be substituted, whether a fitness-for-duty certification is required, and a list of essential job functions. Sample forms of both notices have also been made available.
Employee notice requirements
Notices required of employees have also been affected by the new regulations. Employees must still give 30 days advance notice of foreseeable leaves, and do so as soon as practicable if it is unforeseeable. However, "as soon as practicable" now means the same or next business day after an employee learns of the need for the leave. In addition, the employee's notice must contain sufficient information to allow the employer to determine whether the request qualifies under the FMLA. It may be written or verbal, but must advise of the expected duration of the leave. Simply calling in sick without providing additional information is insufficient notice.
Certification
Under the new rules, an employer now has 5 days to request medical certification. The request must be in writing, and must be completed by the employee within 15 calendar days. The medical certification must contain the healthcare provider's specialization, medical facts regarding the patient's condition, and whether intermittent or reduced schedule leave is medically necessary. The DOL has provided a sample certification form. If the certification is incomplete, employers must notify employees in writing, and permit them 7 days to resubmit. If they fail to do so, leave may be denied.
Importantly, employers are now allowed to contact the employee's healthcare provider directly in order to clarify or authenticate the certification. However, an employee's direct supervisor may not be the individual contacting the healthcare provider.
Serious health condition
The broad definition of "serious health condition" remains in the new regulations. However, in order for a chronic serious health condition to qualify, the condition must now require at least 2 visits to a health care provider per year. Also, in cases of continuing treatment, the employee or sick family member must have made an in-person visit to the health care provider within 7 days of the first day of incapacity.
Waivers
The new regulations now expressly allow employees to settle and release past FMLA claims without approval by a court of the DOL. This was included in the regulations in response to various court decisions that had previously prohibited such settlements. This means that employers may again include FMLA claims in their standard releases.
What to do
During the next two months, employers should familiarize themselves with all of the new regulations, and update their policies and procedures to comply with the new rules. This includes revising their forms to reflect the changes, and to take advantage of the new provisions aimed at minimizing abuse by employees. Lastly, managers, supervisors, and human resource employees should be trained on the new regulations.
If you have questions about how these regulations will affect your business, or wish to review your employment policies and practices in general, please contact Mr. Gonzalez at 312-558-9779 or at egonzalez@elvisgonzalezltd.com.
|
|