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Employers Must Comply With New FMLA Regulations

January 12, 2009

Authors: Gary S. Starr, Henry J. Zaccardi

On January 16, 2009, new Family Medical Leave Act (FMLA) regulations go into effect. Throughout this alert, blue highlighted words are links to detailed explanations of the highlighted item. Simply click on the link and you will be connected to a more detailed explanation in each case. These regulations not only cover FMLA but also the National Defense Authorization Act. There are detailed rules about what circumstances qualify for a leave for military families as well as how much time they are eligible for.

There is a renewed emphasis on improved communication with an effort to make the administration of leaves more flexible, while also requiring more record keeping. Employees must be advised of their rights and told what they need to do to have a leave approved and to preserve their reinstatement rights. The regulations also clarify how light duty affects a leave. There are new notice requirements that must be posted and included in employee handbooks.

When someone applies for leave, the Employer’s response period regarding eligibility for leave has been increased to 5 business days from the date of the employee’s request or from when the employer was aware that a leave may be a FMLA qualifying leave. There is a change in what information an employer can request. The Eligibility Notice response requires specific information. The changes provide new definitions of a serious health condition, continuing treatment and chronic condition. If an employer requires employee’s to provide medical certification to establish eligibility for a FMLA leave, the employer has 5 business days to make the request and the employee then generally has 15 calendar days to provide the information. If the employee has a serious medical condition that extends beyond a single leave year, an annual medical certification may be required. The medical certification rules have also changed.  There are modifications to the rules regarding intermittent leaves.

Once the employee provides the necessary information, the employer must inform the employee that leave has been approved and designated as FMLA leave via a Designation Notice. This notice must be provided within 5 business days after the employer has sufficient information to decide on whether the employee is eligible.

Employers may now deny so-called “perfect attendance awards” for any employee who does not have perfect attendance because he or she took FMLA leave. However, employers may do this only if they treat employees taking non-FMLA leave in an identical way.

While many of the changes in the new regulations are aimed at employer practices, employers should amend their policies to account for the new regulations. In particular the military leave provisions, including the list of eight “qualifying exigencies,” and provisions regarding substitution of paid leave should be reviewed and amended as necessary.

This Alert is intended to highlight the new regulations and cannot discuss all the changes and nuances that may go into effect on January 16th. If you have specific questions, please contact any of the lawyers in our Labor and Employment Department.

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