On Nov. 17, 2008, the U.S. Department of Labor (DOL) issued the final regulations under the Family and Medical Leave Act of 1993 (FMLA). The final regulations are set to take effect on Jan. 16, 2009, and will impact the forms employers use to administer FMLA leave, employer FMLA policies, employer notice obligations concerning FMLA leave, service member leave obligations, and the FMLA administrative process. These regulations can be downloaded by visiting the DOL Web site at the following location: www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763.
Some of the significant changes to the final regulations include:
- providing clarification about when PEOs will be considered joint employers;
- clarifying employee eligibility criteria;
- adding specific limitations on the definitions of chronic serious health conditions and the absence plus treatment criteria;
- expanding the capability of employers to communicate with health care providers, particularly when the condition also involves an ADA issue;
- allowing employers to seek specific information from the health care provider about the employee's ability to perform the essential functions of his or her job;
- clarifying holiday and bonus pay issues; providing that employees who wish to substitute paid leave must do so in accordance with the employer's criteria for the paid leave plans;
- providing a narrow exception for intermittent leaves due to physical impossibility and providing for a more frequent fitness for duty certification for reasonable safety concerns;
- allowing public employers to require substitution of compensatory time;
- clarifying light duty issues;
- changing the deadlines for response to employees;
- revising the frequency for recertification and clarifying that the initial certification only covers the 12 month eligibility period;
- and clarifying the circumstances under which retroactive designation of leave is permissible
In addition, the regulations expressly permit employers and employees to enter into release and waivers of any past FMLA claims without department oversight. Employees are further required to follow their employer's uniformly enforced and established call-in procedures, absent extenuating circumstances. The final regulations also provide guidance concerning the administration of leave to care for the covered service member with a serious illness or injury, and the types of situations permissible for leave due to exigent circumstances. New certification forms for these types of military leaves are provided.
Finally, the regulations impose additional notice obligations on the employers, including notice concerning eligibility, and notice requirements concerning employee rights and responsibilities, and change the content of the certifications currently used. Employers are well advised to analyze these significant changes, as well as their FMLA administration process, in preparation for the implementation of these changes.
Seminars and further analysis of the regulations will soon follow. Barnes & Thornburg LLP's Grand Rapids, Mich. and South Bend, Ind. offices will host separate seminars on Jan. 14, 2009; the firm's Fort Wayne, Ind. office will host a seminar on Jan. 15, 2009; and in Indianapolis, the firm will host a half-day seminar on Dec. 22, 2008 and again on Jan. 15, 2009.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
