Ringing In the New Year With New FMLA Regulations

Adding to the usual hustle and bustle of the holidays, many HR professionals also are scrambling to get the right policies and procedures in place before mid-January when some sweeping changes in the Family and Medical Leave Act (FMLA) will go into effect.

The U.S. Department of Labor recently released the final regulations, and HR professionals and employers now have until Jan. 16 to train employees and supervisors, and to make necessary changes in company forms, policies, and procedures for family and medical leave requests.

Since it was passed in 1993, the FMLA has been an administrative headache for many HR professionals and business owners. The original law requires that companies provide qualified employees with up to 12 weeks of annual unpaid leave for family and health-related issues.

But experts say the new regulations will help make administration of the regulations a little easier for HR professionals. Some say the revisions help clarify reporting procedures, limit who can access an employee's health records, and set time limits on how quickly employees need to see their physicians to certify reasons for requested leaves. The new regulations also include new leave provisions for employees with family members in the military.

And the new regulations also better define what qualifies as a “serious health condition” under the law. Critics have said the current definition is too generous and vague.

The new regulations will help protect employees who have serious health conditions by allowing them to take needed leave without fear of losing their jobs, said Kathie Elliott, assistant director of employee relations for Central Michigan University, and governmental affairs director for the Michigan Council of Society of Human Resource Management (SHRM).

“It's a matter of getting back to the original intent of the law,” she said.

Since its inception, many HR professionals also have complained that unscheduled intermittent leave permitted under the FMLA has disrupted business, lowered productivity, and in some cases, invited abuse of the system. Employees now are allowed to take intermittent leave in small increments of time during a single workday or work a modified schedule with fewer hours if a health care provider certifies the necessity due to health reasons.

The new regulations don't address all concerns about intermittent leave, but they do make some important distinctions that will help HR professionals, Elliott said.

“These are really the first significant changes to the FMLA regulations since they were first enacted,” said Lisa Horn, manager of health care for the Society of Human Resource Management (SHRM). “Overall, we're supportive of these changes. These will help with FMLA administration, no doubt about it.”

The new regulations include many changes, but here are some of the more significant ones:

Notification requirements:

• If employees find out that they need to take FMLA leave but are unable to provide at least 30 days' notice of that leave, they now must notify their employers on the same or following business day that they are made aware of the need for the leave.
• Employees who have an unforeseeable need for FMLA leave will be required to follow the employer's customary call-in procedures and notice requirements. Employees also will be required to explain why the need for FMLA was unforeseen.
• Employers are required to respond to an employee's request for leave within five business days of the request or within five days of finding out that the leave may fall under FMLA guidelines.
• Employers are required to notify employees of their rights and responsibilities under the FMLA through a written rights and responsibilities notice. The notice also must explain consequences for failing to meet those obligations.

Certification requirements:

• HR professionals now can call an employee's physician directly if they need to verify that he or she actually signed the certification for the leave. HR professionals also can contact a physician if there is a question about the certification related to the physician's handwriting.
• Immediate supervisors are prohibited from contacting employees' physicians. Only HR professionals, leave managers, or other management officials are allowed to make that contact.
• Employers now can require an employee to provide a fitness-for-duty certification stating that they are able to perform the essential functions of the job before returning from FMLA leave. Employers wanting this certification must provide the employees' physician with a list of the essential functions of a job.
• Separate certification forms are now required for different types of leave. For example, employees must submit a separate form to certify that a family member needs care. They can no longer use the same form that is used to certify an employee's own serious health condition.

New definition of serious health condition:

• The new regulations retain the original definition of a “serious health condition,” but they also make a couple of additional distinctions. They state that if an employee takes leave totaling more than three consecutive days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the start of the employee's period of incapacity. In addition, an employee must visit a health care provider within the first seven days of the start of the period of incapacity.
• The new regulations define periodic visits to a health care provider for serious chronic conditions as at least two visits per year.

Intermittent Leave:

• Employees who take intermittent leave must make a “reasonable effort” to schedule the leave so that it does not unduly impact the employer's operations. This is in contrast to current regulations, which state that an employee only has to “attempt” to do so.
• Employers are not required to account for leave in the smallest increments that their timekeeping systems can track. Companies only have to track the smallest increments that an employer accounts for in other types of leave—provided that the span of time is not greater than one hour.

Military leave provisions:

• Employees with family members who are seriously injured or ill as a result of military service now are qualified for up to 26 weeks of leave in a 12-month period to help care for affected family members who are unable to provide self care or perform normal daily activities.
• Employees are entitled up to 12 weeks of job-protected leave in a 12-month period when a spouse, parent, or child is called to active duty. This provision applies only to the immediate family members of reservists and National Guard members called into active duty. Circumstances that qualify under this provision allow for any “qualifying exigency” (e.g. employee needs time off to care for her deployed daughter's children. Under the new guidelines, a qualifying exigency can include: short-notice deployment, childcare and school activities, military events and related activities, counseling, rest and recuperation, financial and legal circumstances, additional activities agreed upon by the employer and employee.

Next week, read about how to quickly mobilize your staff to make the needed changes by the Jan. 16 FMLA deadline.

Additional Resources:

• U.S. Department of Labor Wage and Hour Division, “Revised Final Regulations Under the Family and Medical Leave Act.”
• “Family and Medical Leave Act and Military Leave: Summary of Final Regulations,” by Sue K. Willman, JD, SPHR, available to SHRM members.
• “New FMLA and Military Leave Rules: What the New Year Will Mean for HR Professionals,” webcast available to SHRM members.
• FMLA and Other Leave Toolkit, SHRM, available to SHRM members.