It’s here and it’s 750 pages long.  It was originally published in February, 2008.  And on November 17th, the Department of Labor finally published its revised regulations to guide employers as we navigate FMLA.

Employers had identified many areas that required clarification  since the FMLA was enacted. And the new regulations do address many of them.  For instance, most of us see a potential of abuse of intermittent leave and  we also find gray areas that prevent asking medical questions regarding FMLA that are allowed under the ADA.

But, and it’s a big but, according to Frank Alvarez of Jackson Lewis, ” Many employers do not have the resources to master complex FMLA rules.  Most are cutting staff and slashing training budgets.  At the same time, they can’t afford to ignore this issue.  FMLA is a major compliance obligation, and in the midst of today’s economic uncertainty, attendance and productivity can be keys to a company’s survival.”

 Although the changes are lengthy and complex, highlights include: 

• Where previously there was one individual employee notice requirement, the regulations have separated that into two – one for Eligibility Rights and the other for Designation of leave status.
• Employers must notify employees of eligibility within five business days.
• Eligibility is maintained for 12 months and employees must be notified of their rights and responsibilities
• Once an employer has enough information to make an FMLA determination, the employee must be notified within five business days but employers also now have five days rather than two to request certification.
• There are now different certifications for employees and family member (always been a sticking point since getting medical information related to family members is often problematic).
• Employers can now request info under the ADA without violating FMLA.
• Employers must notify employees in writing of certification deficiencies and allow seven days to provide the additional information.
• Employees must provide FMLA certification even when using paid leave.
• Employers can request new certification each year and request new recertifications every six months (or more frequently if other circumstances change).
• Employers can require more thn a simple “OK to return to work” statement and may ask for fitness for duty certifications for intermittent leaves if safety concerns exist.
• Employers don’t need to account for FMLA leave increments measured in minutes if their payroll system isn’t set up to do so.
• If  a workplace makes it physically impossible for employees to start work mid-way through a shift, the entire shift may be designated FMLA leave (examples include train conductors, flight attendants, lab technicians in a clean room).
• A PEO’s client is the employer of record for FMLA purposes and must comply with FMLA requirements.
• Calling in sick doesn’t trigger an employer’s FMLA obligations.
• Overtime not worked can be counted against FMLA leave entitlement.  If the employee would have been required to work overtime and didn’t, that time counts against their total leave allotment.
• Light duty work assignments don’t count toward FMLA.

 The bottom line:

Employers have less than eight weeks,  a period that includes three major holidays and many planned vacations, to modify procedures, create new documents and train personnel in these complex regulatory changes.  It isn’t going to be easy…. 

 For additional information, check out the following links:

http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1563

http://www.businessknowhow.com/manage/FMLA_changes-2008.htm

 http://www.shrm.org/hrnews_published/articles/XMS_111708.asp 

http://www.bsk.com/pdfinfomemos/11-2008_e-memo_labor.pdf

Tags: , ADA, DOL, Employee Health, FMAL, Human Resources, LOA, Medical Surveillance

This entry was posted on Tuesday, November 18th, 2008 at 3:14 pm and is filed under Employee Health, Industry trends. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.