On November 17, 2008, the U.S. Department of Labor (DOL), Wage and Hour Division issued final regulations governing the Family and Medical Leave Act (FMLA) which goes into effect on
January 16, 2009.

WHAT SHOULD I DO NOW?
Review and Revise Policies

Check policies regarding substitution of paid leave for unpaid FMLA leave
DOL allows employers to apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave. Under the final rule, if an employer’s policy requires vacation leave to be taken in full-day increments, an employee substituting vacation for FMLA leave would have no right to use less than a full day of vacation leave.

Employers will be required to make employees aware in writing of any such restrictions associated with paid leave use, and will also have to inform an employee that he or she remains entitled to unpaid FMLA leave even if he or she chooses not to meet the terms and conditions of the paid leave policy.

Check policies for Scheduling Intermittent Leave
The current regulations provide that when an employee uses intermittent or reduced-schedule leave, the employee must “attempt” to schedule the FMLA leave so as not to disrupt the employer’s operations. The final rule revises this requirement to mirror the FMLA statutory language that an employee must make a “reasonable effort” to avoid disruption and the DOL makes clear that “if the healthcare provider determines that there is a medical necessity for a particular treatment time, the medical determination prevails.”

Check policies for Increments of Intermittent Leave
Current regulations provide that employers must account for intermittent leave in the smallest increments of time used by their payroll system to account for absences or use of leave, so long as the increment is one hour or less. The final rule states that the employer must use an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

The final rule will not require that employers account for FMLA leave in small increments simply because their payroll systems are capable of doing so. As stated above, employers need only use the smallest increment of time used to account for other forms of leave, provided that increment is no more than one hour. For example, if an employer uses 30-minute intervals to account for sick leave and one-hour increments to account for vacation time, the employer must use the smaller of those increments (i.e., 30 minutes) for FMLA purposes.

Check policies for Calculating Intermittent Leave
The final rule changes the method of calculating an employee’s leave entitlement when an employee works a schedule that varies from week to week. Under the current regulations, an employer must determine the average number of hours worked using the 12-week period prior the employee’s commencement of leave. Under the final rule, employers will be required to use the 12-month average of hours worked prior the commencement of the employee’s FMLA leave.

Check policies for Overtime and Intermittent Leave
The final rule contains a helpful clarification of the use of intermittent leave by modifying its interpretation as to when overtime hours taken as intermittent leave can be counted against the FMLA entitlement. Under the current regulations, it is unclear whether an employee who presents a note that he or she cannot work more than 40 hours a week (and therefore cannot work overtime) is taking “leave.” In the final rule, DOL clarifies that if the employee would have been required to work the overtime hours but cannot do so because of a FMLA-qualifying condition, the employee may be charged FMLA leave for the hours not worked. Employers cannot, however, discriminate in the assignment of overtime hours in order to deplete FMLA leave-takers from their FMLA leave entitlement.

Check policies for Interplay of Paid Leave with Disability Benefits
Under the final rule, it remains the case that the FMLA substitution provisions are not applicable when an employee receives disability benefits while taking FMLA leave. The final rule provides, however, that the employer and employee may agree to have paid leave run concurrently with FMLA leave to supplement disability benefits (e.g., where an employee only receives two-thirds of his or her salary from the disability plan), as long as such an agreement is permitted under applicable state law.

Check policies for Interplay of Information Required for Disability Plans or Workers’ Compensation Benefits
The final rule makes clear that if an employer has a disability benefit plan that would require the employee to provide more or different medical information than that permitted under the FMLA’s medical certification requirements, an employer can require an employee to provide such information as long as the employer makes clear that the failure to provide this additional information only jeopardizes receipt of disability benefits, not the entitlement to unpaid FMLA leave. This same rule applies in the case of workers’ compensation benefits. The final rule clarifies that an employer may use this additional information to determine whether the need for leave qualifies under the FMLA.

Check policies for Retroactive Designation of Leave
The final rule states, “[i]f an employee takes...leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” The final rule provides that employers now may retroactively designate leave, provided that there is no individualized harm to the employee caused by doing so. This will often be the case where an employee’s own serious medical condition is at issue. On the other hand, where an employee plans on taking leave for the care of a family member, he or she may plan with a spouse how to allocate their collective leave requirements and, therefore, an employee could likely argue that the failure to designate caused harm, because the employee could have made alternative coverage arrangements had the employer timely designated the leave.

WHAT SHOULD I DO NEXT?
For further information as well as a copy of the complete final regulation, please use the below link for the DOL’s website: http://www.dol.gov/esa/whd/fmla/finalrule.htm If you have any additional questions regarding the information within this eCommunication, please call Corporate Synergies at 1.866.CSG.1719 or click here to contact us today.