By: Casey Christensen and Noël M. Caughman

As of January 16, 2009, new regulations promulgated by the U.S. Department of Labor have significantly changed employers’ rights and obligations under the Family Medical Leave Act (“FMLA”), the federal law that governs an employee’s right to leave. The revised regulations, long debated and just as long expected, are extensive – almost 800 pages of text. While all of the changes can’t possibly be related in a short update like this, some of the more significant changes are discussed briefly below:

Notices

Employers must provide several different notices regarding an employee’s rights under the FMLA:

(1) a “General Notice” of FMLA rights and obligations, to be posted (physically or, in some circumstances, electronically) in the workplace in employee handbooks, which must be given and/or posted at or upon the employee’s hiring;

(2) an “Eligibility Notice,” to be given to each employee who requests FMLA leave (or provides sufficient information to indicate to the employer that he or she may be entitled to one), notifying the employee of his or her right to FMLA leave;

(3) a “Rights and Responsibilities Notice,” to be provided or combined with the Eligibility Notice, clarifying the employee’s expectations and obligations (e.g., to provide medical certification, to substitute paid leave, the employee’s reinstatement rights, etc.); and

(4) a “Designation Notice,” specifying whether a particular leave qualifies under the FMLA.

The failure to provide one or more of these notices constitutes “interference” with the employee’s FMLA rights, and may subject the employer to damages. The Department of Labor (“DOL”) has released new model forms which may be, but are not required to be, used by the employer to satisfy these notice requirements.

Certification/Medical Information

The employer can request medical certification even when substituting paid leave (sick leave, PTO, etc.). The employer may also use medical information obtained through other avenues (e.g., ADA, paid leaves, workers compensation) to evaluate the FMLA leave request. Employers must notify an employee whose certification is incomplete or insufficient, and provide an opportunity to cure the deficiencies – and, if the employee fails to do so, the leave may be denied. The new regulations specify how often recertification can be sought – every year for conditions extending beyond one leave year, and every six months for open-ended conditions. Finally, an employer may request a fitness for duty certification upon the employee’s return.

Intermittent Leaves

Employers must account for intermittent leave, in increments no longer than one hour, unless the employer accounts for other leaves on a shorter basis. When the nature of the work makes it “physically impossible” to start work in the middle of a shift – such as a flight attendant starting work halfway through a flight, or a “clean room” technician starting after the room must be sealed – the entire shift may be designated as FMLA leave. (The DOL said it intends this exception to be strictly and narrowly applied.) An employer may also request a fitness for duty certification for intermittent leave if safety concerns justify the request.

Breaks In Service

An employee who has worked 1,250 hours and 12 months for his or her employer remains eligible for FMLA leave. Also now eligible, however, is any employee who worked for a total of 12 months in any of the preceding seven years. In other words, breaks in service of less than seven years do not affect an employee’s right to FMLA leave. This is a substantial expansion of FMLA eligibility. 

FMLA Disputes

Disputes between employee and employer must be discussed and, if possible, resolved through direct discussions, which must be documented in the employee’s file. Further, an employee may settle or waive past claims for FMLA benefits or rights without approval of a court or the DOL. Prior court decisions had split on this issue. The new regulations make clear that FMLA’s prohibition on waiver of rights applies only to prospective rights.

Employer Action Items:

Archer Norris recommends all employers review and revise their handbooks, notices, and release forms to ensure that they comply with these extensive new regulations. In addition, California employers must also comply with different state regulations regarding the California Family Rights Act (“CFRA”). Until California law catches up with the FMLA changes, the differences create a compliance nightmare for employers. (The state has prepared a matrix of the differences, which if anything adds to the confusion – you can find the matrix here)

If you have any questions about the effect of the new regulations on your business – particularly before CFRA regulations are changed to conform to the new FMLA regulations – rest assured that you are not alone. For assistance in drafting forms or implementing policies to meet all applicable requirements, please contact your Archer Norris employment attorney.

This article is intended to provide Archer Norris clients and contacts with general information. The content of this publication is for informational purposes only. Neither this publication nor its authors are rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by Archer Norris, and a written agreement containing all terms of representation has been signed.

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