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Practical Tips For Compliance with the New FMLA Regulations

Presented by: Eileen Groves

United Space Alliance Frank Alvarez

Jackson Lewis LLP February 19, 2009

Association of Corporate Counselwww.acc.com

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Major Changes to FMLA Regulations (1/16/09)

  Employer General Notice Obligations   Employer Specific Notice Obligations   Employee Notice Obligations   Medical Certifications   Intermittent Leave   Military Family Leave

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Employers’ Notice Requirements Expanded

  General Notice Obligations Enhanced

  Covered employers must post a general FMLA notice even when they have no FMLA-eligible employees

  Each employee entitled to general FMLA notice unless employer publishes handbook or other summaries of leave rights

  Posting requirements may now be satisfied through electronic posting

o  Note: Preamble to Regulations state employees must have access to all FMLA electronic postings

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Employers’ Specific Notice Requirements   Employer Specific Notice Requirements Modified   Two new notice requirements:

  1) DOL WH-381 -- Eligibility/Rights and Responsibilities Form

•  Send within 5 business days, absent extenuating circumstances •  Details specific expectations and obligations of employees,

explaining consequences of failing to meet the obligations •  Eliminates need to provide a “preliminary” designation of

FMLA leave

•  Possible ambiguity in instances where “eligible employees” have previously exhausted all FMLA leave

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Employers’ Notice Requirements (cont.)

  2) DOL WH-382 -- Designation Form •  Confirms employer’s leave determinations and

designated leave amount •  Due 5 business days after employer receives

satisfactory medical certification of need for leave •  Retroactive notice is permissible if it does not

cause employee harm or injury

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Changes to Employee Notice Requirements •  Employees must explain reasons for leave so as to allow an

employer to determine whether the leave qualifies under the Act

•  “Calling in sick” – Insufficient to trigger FMLA obligations

•  Leave may be denied if employee fails to adequately explain

•  For further FMLA leave, employees must specifically reference the qualifying reason or need for FMLA leave

•  Employees can be required to comply with customary notice and procedural requirements for requesting leave, absent unusual circumstances

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New Rules Governing All Medical Certifications •  Employers “shall state in writing what additional information is

necessary to make the certification complete and sufficient”.

•  “Incomplete” and “insufficient” certifications defined

•  Employees have 7 calendar days to cure deficiencies

•  Clarification:

  Employers need not retain a health care provider to obtain clarification … but employee’s supervisor may not contact health care provider

•  Will demand greater effort in administering FMLA leave

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Changes: Initial Medical Certification

•  Time to request medical certifications increased from 2 to 5 business days

•  Certifications may be required for paid leave

•  If condition extends beyond a leave year, certifications can be requested annually

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Changes: Medical Recertification

•  In all instances, certifications can be requested once every six months

  Even for ongoing, or lifetime serious health conditions

•  Absent showing of “changed circumstances” or reason to doubt the continuing validity of the leave, recertification still may not be required until the initial period of leave has elapsed

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Changes: Fitness for Duty Certifications

•  Employers may demand more than a “simple statement” of the ability to return to work

•  Fitness for duty certifications for intermittent leave may be sought if reasonable safety concerns exist

•  No second or third opinions permitted

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New and Improved FMLA Forms (Excluding Military Servicemember Leave)

•  New certification of health care provider for employee’s serious health condition

  WH-380E Form

•  New certification of health care provider for family member’s serious health condition

  WH-380F Form

•  Remember …. state law may restrict right to receive certain medical information (e.g. California)

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Intermittent Leave Issues •  Not Required to Utilize Payroll System Accounting

•  Minimum Duration Must Be Consistent With Other Leaves

•  Minimum Duration Cannot Exceed One Hour

•  Clarification of Calculation Where Starting Work is Physically Impossible During Middle of Shift

•  Employer’s Obligation to Track Intermittent Leave and inform employees of amount of leave available

  But not more than once every 30 days

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Military Servicemember Leave   Qualifying Exigency Defined (exclusive list)

(1)  Short-notice deployment

(2)  Military events and related activities (3)  Childcare and school activities

(4)  Financial and legal arrangements (5)  Counseling (6)  Rest and recuperation

(7)  Post-deployment activities (8)  Additional activities related to active duty or call to active duty

  New optional DOL WH-384 Form -- Certification of qualifying exigency for military family leave

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Military Caregiver Leave – “Single 12 Month Period”

•  26 weeks of leave in “a single 12 month period”

•  12 month period begins on first date of leave

•  Operates independent of method for calculating 12 weeks of

other FMLA leave (BAF, SHC, exigency)

•  Congress specified “a single 12 month period”

(29 U.S.C. 2612(a)) (emphasis added)

•  DOL says applies per servicemember, per injury

•  No more than 26 weeks of leave in any 12-month period

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Military Caregiver Leave – Son, Daughter and Next of Kin

•  Son and daughter can be any age

•  Next of Kin does not include spouse, parent, son, or daughter

(they already have a right to this leave)

•  Servicemember may designate blood relative in writing

•  In absence of designation, multiple family members at same level

of relationship all are next of kin and may take leave

consecutively or simultaneously

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Military Caregiver Leave – Dual Purpose Leave

•  If military caregiver leave would also qualify as SHC, no

dual designation allowed

•  Leave must be designated as servicemember leave first

•  Employer may retroactively designate leave as

servicemember leave

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Steps Employers Should Take Now

•  Update FMLA policies •  Update FMLA posters and notices •  Develop FMLA Guidelines and Procedures •  Update/develop certification forms and template

letter •  Training (HR, Supervisors, and potentially

employees)

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Critical FMLA “Transactions”   Written notice of employee rights and responsibilities

  Transmittal within five days of notice of need for leave the “Notice Of Eligibility And Rights And Responsibilities” (WH-381) along with either:

  Certification form

  and/or a list of essential job functions

  Requesting more completed or sufficient medical certifications

  Requesting clarification or authentication of medical certifications

  Requesting and securing additional medical opinions

  Designation or denial of FMLA leave (WH-382)

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Critical FMLA “Transactions”

  Obtaining recertification of need for leave for a serious health condition

  Securing “Fitness for Duty” certification prior to employee’s return to work

  Determination of eligibility for extension of leave under other federal, state, or local laws, or company leave policies

  Termination of employee upon willful failure to return to work after leave

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Interaction with State Leave Laws

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States with Family and Medical Leave Laws   California   Connecticut   District of Columbia   Hawaii   Maine   Massachusetts

  Minnesota   New Jersey   Oregon   Rhode Island   Vermont   Washington   Wisconsin

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FMLA is a floor … not a ceiling

  825.701(a)(3) If State law provides six weeks of leave, which may include leave to care for a seriously‑ill grandparent or a “spouse equivalent,” and leave was used for that purpose, the employee is still entitled to his or her full FMLA leave entitlement, as the leave used was provided for a purpose not covered by FMLA. If FMLA leave is used first for a purpose also provided under State law, and State leave has thereby been exhausted, the employer would not be required to provide additional leave to care for the grandparent or “spouse equivalent.”

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Common Differences Under State Leave Laws

  Lower threshold to qualify as a covered “employer”

(e.g. 1 employee, 10 or more, 15 or more, 21 or more, 25 or more, 30 or more)

  Lower threshold of eligibility to qualify as a covered “employee” (e.g. 1,000 hrs/12 mos., 6 mos., 12 mos., 25 hrs/wk for 180 days prior to leave)

  Different definition of “service member”

  Broader/different definition of “serious health condition”

  Broader/different definition of covered family members (e.g. in-laws, same-sex domestic partner, grandparents, grandchildren,

children of domestic partner)

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Common Differences Under State Leave Laws   Broader/different reasons leave may be taken

(e.g.; address the effects of domestic violence, stalking, or sexual assault, attend school or educational activities, attend routine medical visits)

  Greater/different duration of the leave (e.g. 16 wks/24 mos., 10 wks/2 yrs, 36 wks/yr., 13 wks/2 yrs)

  Method for calculating 12-month period of leave (e.g. fixed year vs. rolling year)

  Less stringent/different medical certification requirements   Different mandates regarding continuation of benefits

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