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. The final FMLA regulations have changed a variety of terms and conditions for requesting and receiving FMLA leave. These range from providing definitions and procedures related to the new family military leave provisions to big changes to the notice requirements when FMLA leave is requested.
With these new regulations comes a lot of information. We will be issuing this information in a four part series. They will include the following;
- Definition changes and policy updates required
- Leave policy
- Notice responsibilities – employer and employee, including medical certification
- New Military provisions
WHAT SHOULD I DO NOW?
Review and Revise Policies
In order to comply with the new FMLA regulations, employers must take the following steps to review and revise leave policies.
Check definitions for qualifying serious health conditions.
The DOL has changed definitions for what constitutes “continuing treatment” for a serious health condition. The current regulation requires an employee to establish a serious health condition by visiting a healthcare provider on two occasions and has more than three days of incapacity associated with the condition. The final rule provides that the two visits must occur within a 30-day period from the onset of the initial incapacity. The final rule also provides that the first visit must occur in person (i.e., not via phone call or other means) within seven days of the first day of incapacity.
To address employer concerns that employees may schedule a second follow-up appointment simply to meet the second-visit requirement, DOL adds language in the final regulation that the healthcare provider, and not the employee or patient, must make the determination as to whether a second visit is needed during the 30-day period.
DOL’s final regulation also includes DOL’s proposed clarification that “periodic” means visiting a physician twice or more per year for the same condition. (The current regulations define a chronic serious health condition as one that requires “periodic visits for treatment,” but fail to define what “periodic” means.)
Check policy for eligibility requirement
The current regulations require that, in order to be eligible for leave, an employee must have been employed by the employer for at least 12 months, must have provided at least 1,250 hours of service during the 12 months preceding the leave, and must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the primary worksite. The existing regulations also provide that the 12-month eligibility period need not be continuous and the DOL extends the permissible gap in service from five years to seven years. That is, employers are required to look at prior service for up to seven years before the leave is taken in order to determine employee eligibility.
Check policy for worksite definition
Current regulations provide that an employee’s worksite is the primary employer’s office from which the employee is assigned or to which he or she reports. The final rule contains important clarification with respect to telecommuting arrangements. DOL makes clear that “employees who work out of their home do not have their personal residence as their worksite.” Instead, “virtual” or “remote” employees are considered to work in the office to which they report and from which assignments are made.
Check policy for Coverage of Professional Employer Organizations
The final rule provides that a Professional Employer Organization (PEO) will not be considered a joint employer for FMLA purposes when it only performs administrative functions for an employer, such as providing payroll services. However, in certain cases it could be covered, for example, if it has authority to hire or fire. A case-by-case analysis will be required to determine if joint employment status exists.
Check policy for Treatment of Holidays
The final rule reaffirms that when a holiday occurs during an employee’s scheduled workweek and an employee is taking a full week of leave, the holiday counts against the employee’s 12-week leave entitlement. The final rule also provides that when the employee is taking FMLA leave in increments of less than a week, the time counts against the FMLA entitlement only if the employee was required to work on the holiday.
Check policy for Light Duty
Current regulation states that when an employee accepts a light-duty assignment, “the employee’s right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of light duty.” The final rule makes clear that the time an employee works in a voluntary light-duty position does not count against the employee’s FMLA entitlement.
Check policies regarding bonus or other payments
The final rule eliminates the distinction between an attendance and production bonus, and instead provides that an employer may disqualify an employee from a bonus or award predicated on the achievement of a specific goal (e.g., hours worked) where the employee fails to achieve that goal as a result of an FMLA absence, as long as the disqualification standards are not discriminating against FMLA users. The final rule makes clear that it applies to attendance bonuses.
Check policies for Fitness for Duty
The final regulations contain a change that provides that an employer may require an employee to furnish a fitness-for-duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns (i.e., a reasonable belief of significant risk of harm to the individual employee or others) exist, provided that the employer includes that requirement in its designation notice.
The final regulation state that when an employer (1) provides the employee with a list of the employee’s essential job duties no later than with the designation notice and (2) advises the employee in the designation notice that the certification must address the employee’s ability to perform the essential functions of the job, the employer may require the employee’s healthcare provider to certify that the employee can perform those duties. When providing a fitness-for-duty certification, the healthcare provider must assess the employee’s ability to return to work against these identified essential functions.
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.
|
