The FMLA has undergone major change in the past 18 months. First, there was the National Defense Authorization Act (NDAA), an amendment to the FMLA, which took effect in January 2008. Then, in February, the U.S. Department of Labor (DOL), released its proposed regulations for public comment. The comments were collected and the FMLA's final regulations were published in November. Then, on January 16, 2009, the final regulations took effect. And, since then, employers have been operating under this new--and substantially different--set of regulations. Whether or not they realize that there's a new set of rules in town is a different question.
For those of you who are aware that the FMLA's final regulations are now in place, you also probably know that the regs impose a set of new responsibilities on employers. I've spoken to Human Resource professionals about the final regulations several times since they were first promulgated, including at our annual employment law seminar last week, where William W. Bowser and I presented an FMLA update twice in the same day to accommodate the large number of attendees. A single blog post is not the best way to share the many ins and outs of the new law. But I can address one topic that I consider to be critical for employers to understand: FMLA Notices.
The final FMLA regs contain substantial changes in the conditions in which an employer can and must give certain FMLA-related notices to employees. Each of these notices have a great number of complexities that employers are best advised to come to terms with now. The new regulations are unforgiving when it comes to employer delays.
Here's the run-down for what employers must know about the required FMLA notices.
Under the new regulations, this includes the traditional posting requirement. If the employer has a written policy on leave and benefits or an employee handbook that includes such a policy, the same posting notice must be included. Employers without a handbook should call me. Then they should start providing each new employee with the general notice (posting) at the time of hire.
A few points of interest with respect to the General Notice. First, if a significant portion of your workforce is not English literate, the posting must be translated into their language(s). Second, an employer who is FMLA covered must post the General Notice at all work sites, regardless of whether a work site has any FMLA-eligible employees.
Eligibility Notice and Rights and Responsibilities Notice
Once an employee requests leave, or the employer becomes aware that an employee may qualify for FMLA-protected leave, the employer must give two more notices: the Eligibility Notice and the Rights & Responsibilities Notice. Eligibility Notice must be given within 5 business days and must tell the employee whether or not he or she is eligible for FMLA. If the employee is not eligible, the Notice must provide at least one reason why not. If the employee has another request for leave in the same 12-month period, the Eligibility Notice need not be issued again unless the employee's eligibility status has changed.
At the same time, the employer must inform the employee of his rights and responsibilities as provided by the FMLA. Specifically, the notice must state that the leave may be designated as and deducted from any existing FMLA entitlement and it must identify the 12-month period being used when making an FMLA determination. Most critical, though, is the requirement that the employee be notified of his responsibilities, if any, with respect to providing a medical certification.
If the employee will be required to provide a medical certification of his or his family member's serious health condition or, in the case of military family leave, certification of a qualifying exigency, he must be informed of this requirement now. The DOL's certification form can (should) be included with the rights and responsibilities notice.
If the employee does not return a medical certification, the employer has no further obligations with respect to notices. But, if the employee does come back with the certification as requested, the employer's final notice requirement is triggered. Once the employer has sufficient information to make a determination about whether FMLA will apply to the leave, it must notify the employee of its designation.
If the leave will not be designated as FMLA, the notice must tell the employee why the leave is not deemed qualifying. If the leave will be designated, the employee must be notified of the number of designated hours, days, or weeks.
Key at this stage is the requirement that the notice include information about a fitness-for-duty certification requirement if the employer has one. And a list of essential job duties if the FFD must address the employee's ability to perform essential job functions. Just to recap this critical requirement, let me point out that, along with a designation notice, the employer must inform the employee that a FFD will be required or waive the ability to require it. And, to top it off, if you fail to include a list of essential job duties, the FFD will be based on the employee's own description of his or her job duties. Not ideal.
In case you missed it, here's what you need to know when it comes to FMLA leave notices. Using the handy-dandy image, above, here's the timeline. First, you've got to comply with the General Notice requirements--in the form of a posting and policy. Second, once the employee gives notice of the need for FMLA leave (or you learn of the need otherwise), you must give an Eligibility Notice, informing the employee of his or her eligibility status. At the same time, you must provide the Rights & Responsibilities Notice, including a notice to the employee that he must provide a certification if one is going to be required. Assuming the employee returns the required certification, then you must designate the leave as FMLA, non-FMLA, or inform the employee that you do not have sufficient information to make the designation. And, if you will require the employee to provide a fitness-for-duty certification, you must put him on notice now.
These now-or-never requirements of the FMLA final regulations require employers to do some real advance planning. Employers must determine when they will require an employee to provide a certification and under what conditions a fitness-for-duty certification will be necessary. As if that's not enough work to do, you must also have the essential job functions prepared and ready to go when you send out the FFD information. That's a lot of planning so if you haven't gotten started, there's no time like the present.