FAMILY LEAVE UPDATE

On November 17, 2008, the Department of Labor (DOL) issued long-awaited revised regulations interpreting the Family and Medical Leave Act (FMLA). The revised regulations become effective today, January 16, 2009.

The FMLA generally provides 12 weeks annually of unpaid job-protected leave for qualifying reasons to certain employees who work for an employer with 50 or more employees within a 75- mile radius of the employee. While DOL’s regulatory revisions could have better addressed many more employer concerns (e.g., FMLA leave fraud and other abuse), on the whole the changes are regarded to be pro-employer.

The revisions are sweeping. Below is a summary of the most important revisions, including the addition of two new qualifying reasons for employees to take FMLA leave and revisions to other qualifying reasons for FMLA leave.

General Changes ƒ
 

• To qualify for FMLA leave, employees must still work a total of 12 (nonconsecutive) months, but now generally those months must occur within 7 years of taking leave. ƒ
   
• Clarifies when and how holidays are treated in the leave calculation.
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• Also, now employers can deny any type of bonus to employees on FMLA leave if it does so for employees on other similar leaves (in the past, only production-related bonuses could be denied to employees on FMLA leave). ƒ
   
• Employees may now use leave in the smallest increment of time allowed for other types of leave (e.g., vacation, PTO, etc.) up to one-hour units (formerly employees could use FMLA in the smallest increment of time the employer used for any reason, i.e., quarter hour units). ƒ
   
• Employers now may require employees to follow their paid leave policies when using paid leave concurrently with FMLA leave (instead of the regulations dictating what type of employer-provided leave applied to each reason for FMLA leave). ƒ
   
• Employers now may agree with employees to waive FMLA claims (formerly a court or the DOL had to consent for the agreement to be enforceable). ƒ
   
• Clarifies and modifies the timing and manner for an employee to provide notice of a need for FMLA leave. ƒ
   
• Clarifies and modifies the timing/manner in which an employer can seek information related to an employee’s request for FMLA leave, and the amount and type of such information. Also modifies how employers can clarify and authenticate such information. For example, a manager/supervisor of the employer (other than the employee’s direct supervisor/manager) can contact the health care provider directly in some circumstances about such information (previously, direct contact by any representative of the employer was extremely limited). ƒ
   
• The DOL created the following new forms for employer use: initial eligibility and rights and responsibilities notice, four different certification forms (depending on the reason FMLA leave is sought) and a designation notice. ƒ
   
• Also, the new DOL-issued FMLA poster must be posted in the workplace and the entire contents of the poster must be included in the employer’s policy or the poster must be attached to the policy or otherwise distributed to all employees.

New or Revised Qualifying Reasons for Leave ƒ
 

• For leave based on absence plus continuing treatment, the employee now must be absent from work for more than three full consecutive calendar days, see the doctor in person and at least once within 7 days of the absence and receive a continuing course of treatment (i.e., medication) or see the doctor again within 30 days of the absence. ƒ
   
• Leave based on a chronic condition requires the employee to see his/her doctor at least twice per year. ƒ
   
• Clarifies FMLA leave due to a “qualifying exigency” and for service members, two new types of leave enacted by Congress in January of 2008. Employees now can take up to 12 unpaid weeks of FMLA leave for personal and military matters due to a spouse, child or parent being called or ordered to service in the National Guard or Reserves, or from retirement from the regular Armed Forces or Reserves, and to spend time with such military member on a short-term leave of absence. Employees can take up to 26 unpaid weeks of leave in any single 12-month period to care for a family member (spouse, child of any age, parent or “next of kin”) in the regular Armed forces, including the National Guard or Reserves, who suffers a serious illness or injury in the line of active duty.
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How to Prepare

On January 6, 2009 we provided a WEBINAR on the changes to the new FMLA regulations. Now we are offering a FMLA Starter Kit to help you comply with the new FMLA regulations. The Kit includes: ƒ
 

• Summary Comparison of FMLA, OFLA and Washington Family Medical Leave; ƒ
• Sample Family Medical Leave of Absence Policy; ƒ
• Request for Family Medical Leave – Oregon and FMLA; ƒ
• Sample Cover Letters to Employees Regarding Family Medical Leave; ƒ
• OFLA/FMLA Notice of Eligibility and Rights & Responsibilities (an alternative to the model DOL notice); ƒ
• Four model DOL Certification forms (for your convenience); ƒ
• OFLA/FMLA Designation Notice (an alternative to the model DOL notice); ƒ
• Alternative “Sick Child Care” certification request form.

We are offering this valuable Oregon Kit to Webinar attendees for the discounted rate of $50.00. A similar Washington Kit is also available. Non-attendees may also obtain this Kit, with forms, sample policy, sample cover letters and explanations, for $150.00 (or a more discounted rate if coupled with training). For more information on the FMLA Starter Kit, see the Bullard Law web site: Webinar attendees (click http://www.bullardlaw.com/Resources/NewCalendar-84.html) or Non-attendees (click http://www.bullardlaw.com/Resources/NewCalendar-86.html).

Please also feel free to contact Bullard Smith Jernstedt Wilson for more information regarding the FMLA regulations, small group training or any other labor, employment and benefits issues.