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.

Employer Notice Requirements
DOL’s final rule incorporates a revised framework for employer notice requirements. The notice provisions are grouped into four main categories—general notice, eligibility notice, rights and responsibilities notice, and designation notice—and they will create new obligations that employers must incorporate into the FMLA administrative process.

General Notice Requirement
Under the current regulations, employers must provide a “general” notice of the FMLA provisions by posting a notice in a location available to both employees and applicants. Employers also must contain a general explanation of the FMLA in an employee handbook if an employee has one that addresses leave and attendance policies (general “distribution” notice). If an employer does not have such policy guidance, the employer must provide a “general notice” of the FMLA provisions when an employee requests FMLA leave. The final rule modifies these “general” notice requirements in several ways.

Posting Notice
Under the final rule, employers can satisfy the posting requirement through an electronic posting of notice, provided that (1) the electronic posting is in a conspicuous place on the employer’s website, (2) it is accessible to all applicants and current employees (not just on an internal intranet site), and (3) all employees have access to company computers that post the information in a conspicuous manner.

Distribution of General Notice – WHD publication 1420
If an employer has an employee handbook that contains guidance to employees concerning employee benefits or leave rights, employers should include the general notice in the handbook. For employers who do not maintain employee handbooks or otherwise distribute FMLA policies to their employees, employers will need to distribute a copy of the general notice either in paper or electronic form to each employee at the time of the employee’s hire. It will no longer be sufficient to distribute this general notice only in connection with a specific FMLA leave request. CLICK HERE for a copy of the notice.

Eligibility Notice Requirement - WH 381
When an employee specifically requests FMLA leave, the final rule requires an employer to provide an employee with a specific “eligibility notice.” This notice informs the employee as to whether the employee meets the statutory eligibility criteria—employment with the employer for 12 months, at least 1,250 hours of service in the 12 months prior to the leave request, and employment at a worksite where 50 or more individuals are employed within 75 miles of the primary worksite. This notice must be provided within five business days of the start of a FMLA leave “absent extenuating circumstances” (compared to the two-day turnaround required by the current regulations).

Rights and Responsibilities Notice Requirement - WH 381
The final regulation also requires employers to provide a “Rights and Responsibilities” notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The notice must be provided each time the Eligibility Notice is provided to an employee (typically, within five business days of the start of leave).

Any required certification may be provided with the Rights and Responsibilities notice. The employer may also include other information pursuant to the employer’s specific policies and procedures related to leave, e.g., that the employer requires periodic status reports. CLICK HERE for a copy of the notice.

Designation Notice Requirement – WH 382
A “designation notice” informs the employee whether the particular leave requested will be designated as FMLA leave. The final rule increases the time for an employer to provide the designation notice from two to five business days “absent extenuating circumstance,” and also modifies the start of the time limit; it begins only after “the employer has sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason.” The regulations also require employers to inform the employee; if possible, of the number of hours, days, or weeks, that will be designated as FMLA leave.
CLICK HERE for a copy of the notice

A new requirement associated with the designation notice contained in the final rule is that the notice must also do the following:

• Notify the employee if the leave is not designated as FMLA leave due to insufficient information or a non-qualifying reason.
• Include a statement of the employee’s essential job functions, if the employer will require that those functions be addressed in a fitness-for-duty certification.

Medical Certification
The DOL has adopted two simplified forms—one form to be used when the employee needs leave for his or her own serious health condition (WH-380E), and a second form to be used when the need for leave is to care for a family member with a serious health condition (WH-380F). The forms contain new areas for medical providers to provide sufficient medical facts—symptoms, doctor visits, medical treatment regimen—for employers to make a determination as to eligibility. The forms specifically allow doctors to provide a diagnosis, which is not permitted under the current regulations. (Employers, however, cannot reject certifications that do not contain diagnoses and employers still need to be cognizant of state laws, such as those in California, that prohibit an employer from requesting such information under state law.).

If a certification is incomplete or insufficient, the employer must give the employee written notice of the additional information needed and allow the employee 7 days to cure the deficiency. Also, while a manager or HR professional can contact an employee’s healthcare provider to clarify or authenticate a certification, the employee’s immediate supervisor may not. CLICK HERE for a copy of WH-380E or CLICK HERE for a copy of WH-380F.

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.