On November 17, 2008, the U.S. Department of Labor (DOL) published the final version of the new Family and Medical Leave (FMLA) regulations. The regulations become effective on January 16, 2009 – 60 days after they are published in the Federal Register.

In January 2008, FMLA was amended, adding qualifying events, to provide employees with additional leave relating to military service and the caring for service members. Specifically, the amendments created leave for a “Qualifying Exigency Relating to Military Service.” Eligible employees are entitled to up to 12 weeks of leave because of “any qualifying exigency” arising because the spouse, son, daughter or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation. Until now, the DOL had not issued regulations defining “any qualifying exigency.”

In addition, the regulations create new poster and notice requirements. According to the DOL, there should be a new FMLA poster in December, which will be on CalChamber's all in one poster for 2009.

Other changes include:

• Increases the penalty if employer fails to post the required FMLA poster – An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $110 for each separate offense (it was previously $100);
• Lists specific events that would be a “qualifying exigency” at section 825.126 Joint employment and PEOs. A “Professional Employer Organization” (PEO) is a type of company that contracts with client employers to perform administrative functions such as payroll, benefits, regulatory paperwork, and updating employment policies;
• Eligibility for employees with a break in service;
• Clarifies “serious health condition”;
• Clarifies when holidays are considered FMLA leave;
• Explains when an employer can transfer an employee needing intermittent or reduced leave to another position to better accommodate the leave;
• Adds an exception for physical impossibility-where the employee needs less than a full day for FMLA reasons, but it is impossible for them to return to work (flight attendant, train engineer) the entire shift missed is FMLA;
• Clarifies that unpaid FMLA and paid leave provided by the employer run concurrently;
• Explains that substitution of paid leave does not apply when the employee is receiving paid disability leave (for any reason). However, the employer and employee may agree to use paid leave to supplement the paid disability leave;
• The employer may terminate an employee’s health insurance coverage while the employee is on FMLA leave if the employee fails to pay the employee’s share of the premiums, the grace period has expired, and the employer provides sufficient and timely notice to the employee;
• Bonuses paid for achievement of a specific goal may be denied to employees on FMLA unless employees on other types of leave receive the bonus;
• Employees and employers may agree to settle past claims for FMLA violations;
• Time spent in a light duty assignment does not count as FMLA, but the right to reinstatement ends when the 12-month period used to calculate FMLA ends;
• Increases the amount of time in which employers have to respond to a request for leave;
• Requires that employers notify unqualified employee who requests FMLA why he/she is not eligible for FMLA;
• States employers’ responsibility for designating leave as FMLA, and that only one notice is required for each FMLA-qualifying reason per applicable 12-month period;
• Requires notice of fitness for duty certification at the time of designation of leave;
• Employer must notify the employee of the amount of FMLA leave that will be counted against the employee’s entitlement (if known);
• FMLA leave may be designated as such retroactively if the employer’s failure to timely designate leave does not cause harm or injury to the employee;
• Where it is feasible that the employee could give 30 days advance notice of the need for leave and does not do so, the employer may require that the employee explain why the notice was not given;
• Gives employees 7 calendar days to provide clarification or additional information where the medical certification is deemed inadequate by the employer;
• Employees bear responsibility for providing the employer with required certification of need for FMLA;
• Employers may require annual certification for conditions lasting beyond a single leave year;
• New forms for certification of employee’s own serious illness/injury and for employee’s family member – note, these forms cannot be used in California because of California’s privacy laws, use the forms available to members and purchasers of Labor Law Digest and Labor Law Administration.

What Should You Do?

• Be sure you have ordered the 2009 Labor Law Digest and Labor Law Administration to have the detailed requirements and compliance guidance imposed by these regulations at your fingertips.
• Review your policies and procedures to ensure you are in compliance with the regulations by January 16, 2009.
• Get the 2009 Employment Notices Poster to avoid fines for failure to post the new FMLA poster, as well as other requirements for 2009.
  
  Reprinted with permission from the California Chamber of Commerce.