Final FMLA Regulations Provide Notification Requirements, Military Leave Clarifications and More
The Department of Labor recently issued final regulations regarding the Family and Medical Leave Act (FMLA) that will affect all employers in terms of employment and benefit law administration. The new rules, which are effective January 16, 2009, finalize the military-related leave introduced in the National Defense Authorization Act of 2008 (originally reported in the Compliance Alert dated January 31, 2008), provide new requirements for FMLA notification to employees, and clarify several other issues relating to FMLA administration. The following is a brief summary of these changes:
Military Leave
As reported in the January 31 Compliance Alert, an eligible employee is entitled to up to 26 weeks of leave to care for a family member who is a covered service member and has experienced a serious injury or illness due to active duty. The leave is limited to 26 weeks, even if it falls in different FMLA policy years, and the definition of “family member” includes collateral relatives, such as siblings, cousins and grandparents, if they are the nearest available relative.
Also, an eligible employee whose immediate family member is on active military duty is entitled to up to 12 weeks of leave for any qualifying exigency. According to the new rules, “qualifying exigency” is defined as: (1) short-notice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and/or (8) additional activities where the employer and employee agree to the leave.
Employer Notification of Employee FMLA Rights
According to the new rules, employers must ensure that all new hires are properly informed about their FMLA eligibility and rights. As a result, employers with handbooks or written policies are required to include notification of FMLA eligibility and rights in those materials. If an employer does not have such documents, the employer must distribute the notice to all newly hired employees.
Employee Notification of FMLA Leave
The new rules state that an employee must notify the employer of the need for leave 30 days prior to the leave or the same day (or day after) the employee knows of the need for leave, whichever is earlier. Once this happens, the employer must notify the employee of his/her FMLA eligibility and rights within five days.
Serious Health Conditions
The current definition of serious health condition includes an absence of three consecutive days and two visits to a healthcare provider. The new regulation clarifies that the two visits must occur within 30 days of the period of the incapacity, with the first visit occurring within seven days of the incapacity.
Contacting an Employee’s Healthcare Provider
An employer’s HR professional, leave administrator or management official may contact an employee’s healthcare provider to clarify or authenticate the provider’s certification. However, an employee’s direct supervisor may not contact the provider.
New Certification Forms and Notices
For the purposes of complying with these new provisions, the regulations also include a new Medical Certification Form, a new Designation Notice (to inform the employee if the requested leave is protected under FMLA), and a combined Notice of FMLA Eligibility and FMLA Rights and Responsibilities. Employers should amend their policies, handbooks and forms prior to the law’s effective date of January 16, 2009.
For more information, you can access the DOL’s fact sheet on the final rules or view the entire text of the rules at the DOL’s website. If you have any questions about these new requirements, please contact our office at 919-403-1986.
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December 10, 2008
Hill, Chesson & Woody Employee Benefit Services
194 Finley Golf Course Rd, Suite 200,
Chapel Hill, NC 27517
Phone: 919.403.1986
Fax: 919.913.0237
www.hcwbenefits.com