New FMLA regulations, what employers need to know

The U.S. Department of Labor released the final regulations under the Family and Medical Leave Act (FMLA), clarifying employer and employee rights under the law. The new FMLA regulations were published in the Federal Register on November 17, 2008 and will take effect on January 16, 2009. New forms and posters reflecting the latest changes will be required for employers subject to the FMLA.

This is the first set of revisions to the FMLA regulations since its enactment in 1993 and will affect all employers that must adhere to FMLA guidelines. The final rule helps workers and employers better understand their responsibilities and will speed the implementation of a new law that expands FMLA coverage for military families.

"This final rule, for the first time, gives America's military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty," said U.S. Secretary of Labor Elaine L. Chao in a recent press release. "At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers."

The final rule includes two notable benefits for some military families:

Military Caregiver Leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies." The rule defines "qualifying exigencies" as: (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 and (8) additional activities where the employer and employee agree to the leave.

Additional highlights from the new FMLA regulations:

Waiver of Rights: The department has finalized its position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, prospective waivers of FMLA rights will continue to be prohibited.

Serious Health Condition: The new rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Additionally, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits per year.

Light Duty: Time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee retains the right to job restoration during the light duty period.

Employer Notice Obligations: The final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

Employee Notice: Under the new regulations, employees must follow their employer’s normal call-in procedures when taking FMLA leave. Under current rules, employees may notify their employer up to two days after an absence on their need for FMLA leave.

Medical Certification Process: The final rule recognizes the Health Insurance Portability and Accountability Act (HIPAA) and its impact on medical privacy. Responding to concerns about medical privacy, the new provisions prohibit direct supervisors from obtaining employee medical information for FMLA certification.

View the final rule as it appears in the Federal Register, here.

New forms and posters will be required for employers subject to FMLA guidelines. G.Neil’s top legal experts are working to provide you with the information and resources needed to stay in full FMLA compliance.

As of today, our legal team is developing a new E-Guide to explain the new FMLA rules in plain English. Check back regularly for the most up-to-date information to help you understand and take action on the latest legal requirements that affect your business.

Read our new Q & A reviewing the latest Family and Medical Leave Act Changes.

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