A. Review and revise FMLA policies to comply with the revised regulations.

Employers must review and revise their FMLA policies to ensure that they are consistent with the revised FMLA Regulations. The regulations have significantly altered the rights and obligations under the FMLA. Policies must, for example:

1. Address the FMLA’s New Categories of Leave Entitlement. The revised regulations implement the new leave regulations of the National Defense Authorization Act of 2008, i.e., military caregiver leave and qualifying exigency leave. “Military caregiver leave” allows the family members of covered servicemembers up to 26 weeks of FMLA leave to care for such servicemembers who have been injured or incurred a serious illness in the line of duty while on active duty. “Qualifying exigency leave” permits employees up to 12 weeks of FMLA leave for so-called “qualifying exigencies” arising from a family member’s service or call-up to active federal duty in the Reserve, National Guard, or as a retired member of the Regular Armed Forces or Reserves. (For a list of “qualifying exigencies”, see the November 26, 2008 Harris Beach Legal Alert).

2. Define “Serious Health Condition” Consistently with the Regulations’ Clarified Definitions. The revised regulations clarify that an employee meeting this definition via more than three full days of incapacity plus two visits to a health care provider, must make those visits within thirty days of the incapacity (absent extenuating circumstances). The first of the two visits must take place within seven days of the first day of incapacity. To meet the definition of a “serious health condition” involving more than three full consecutive calendar days of incapacity and treatment by a health care provider and which results in a regimen of continuing treatment, the first visit to the health care provider must, likewise, take place within seven days of the first day of incapacity.

3. Be Revised to Reflect the Changes with Respect to Requesting Medical and Fitness-For-Duty Certifications. The revised regulations impose significant changes with respect to the use of medical and fitness for duty certifications. For example, the revised regulations permit human resources professionals, leave administrators, and management officials (but not the employee’s direct supervisor) to contact an employee’s health care provider for authentication and/or clarification of medical certifications submitted by the employee. A Health Insurance Portability and Accountability Act (HIPAA) release is required to permit a covered health care provider to clarify the medical information contained in the certification. Employers may also require fitness-for-duty certifications from employees seeking to return from leave with specific regard to the employee’s essential job functions (if the employee was provided with a list of his/her essential job functions no later than the time that his or her leave was designated FMLA leave), and contact an employee’s health care provider for the authentication and clarification of such fitness-for-duty certifications, if a proper HIPAA release has been provided.

4. Be Updated with Respect to the Substitution of Paid Leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same for purposes of substitution of paid leave (e.g., paid time off, vacation, sick). Policies should be updated to clarify that an employee seeking to use paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy as other employees seeking to use such leave.

B. Review and Revise FMLA Forms and Develop New Forms to Comply with the Revised Regulations.

Employer notice requirements have been significantly altered under the revised regulations, requiring employers to revise their current forms and develop additional forms to comply with the FMLA. For example, employers must:

1. Provide Notice of Employee’s FMLA Eligibility, Rights, and Responsibilities. Employer must provide employees with a Notice of Eligibility and Rights and Responsibilities form within five business days of: (a) an employee’s request for leave for an FMLA-qualifying reason; or (b) learning that the leave may qualify for FMLA protection. Each time eligibility notice is provided, employers must also provide an employee with written notice detailing the employee’s rights and responsibilities under the FMLA, and explaining any consequences for failing to meet such obligations.

2. Revise Certification Forms to Reflect New Leave Entitlements. If an employee will be required to submit a certification of his or her need for leave, the certification form should be provided to the employee, along with the Notice of Eligibility and Rights and Responsibilities, within five business days of an employee’s request for leave for an FMLA-qualifying reason.

3. Provide Employees with a Designation Notice. The revised regulations require employers to notify employees in writing regarding whether their leave is being taken for a FMLA-qualifying reason and to provide certain other information to an employee if the leave has been designated as FMLA-qualifying. This notice must be provided to the employee within five business days of the time when the employer has sufficient information to determine whether the leave is FMLA-qualifying.

Employers with workforces comprised of a significant portion of workers who are not literate in English must provide the required notices in a language in which the employees are literate.

C. Provide Employees with General Notice About the FMLA.

The revised regulations require employers must provide employees with general notice about the FMLA through a revised poster (which may be electronic if accessible by all employees and applicants). Employers must also provide employees with general notice about the FMLA through an employee handbook or by distributing a copy of the general notice upon hire (which may be by electronic means).

While this Legal Alert highlights many of the significant changes made by the revised regulations, it is important to note that there are many others. Accordingly, we recommend that employers become familiar with the revised regulations in their entirety. For more information on these critical changes or assistance with reviewing or revising your FMLA policy, contact Karlee Bolaños at (585) 419-8742 or the Harris Beach attorney with whom you usually work.

This Legal Alert provides a brief analysis or comments on matters related to labor and employment law. It does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state in Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse and Yonkers, as well as Newark, New Jersey.