The Family and Medical Leave Act (FMLA) is going through some changes, and business owners will need to pay particular attention in 2009 to make sure they remain compliant.
On November 17, 2008, the Department of Labor (DOL) published its final rule in the Federal Register to update and expand the FMLA, which was passed into law in 1993. The new rules take effect January 16, 2009, and include new military family leave entitlements as well as revisions designed to clarify the requirements that the FMLA imposes on both employees and employers.
“FMLA has long been a source of litigation and confusion in the workplace and the new rules are an attempt to improve communication between employees, employers and health care providers to make the process operate more smoothly and provide clarity for both workers and employers about their responsibilities and rights under FMLA,” says Chuck Whitford, Jr., CLU, ChFC, a consultant for JRG Advisors, the management company for ChamberChoice.
Smart Business spoke with Whitford about the new FMLA changes and how employers can stay on top of them.
What’s the first thing a company should know about the FMLA changes?
Most importantly, while the changes were made to improve communication lines, they still may cause confusion and litigation. The revised regulations are more than 750 pages long and most employers do not have the resources to master the complex rules on FMLA leave. Many are cutting staff and reducing training budgets, but they can’t afford to ignore the issue. FMLA has become a major compliance obligation. In the midst of today’s economic uncertainty, attendance and productivity are the keys to a company’s survival. It is in any employer’s best interest to retain the services of a competent consultant to ensure that the new rules are being followed.
What changes should employers be worried about?
The biggest problem most employers feel that FMLA creates is the potential abuse of intermittent leave rights. The new rules provide some assistance. For example, workers with chronic conditions will be required for the first time to certify that they visit a doctor at least twice a year for that condition. The new rules also require workers to warn their bosses that they are planning to miss work ‘absent unusual conditions.’ Employers will now be allowed to require ‘fitness for duty’ evaluations to make sure that workers who took FMLA leave are fit to return to their specific jobs. Employers will also be allowed to consider FMLA absences in determining bonuses and other incentive rewards. They will be able to disqualify employees when the employee has not met the specific job-related goal due to FMLA leave, so long as this is done in a nondiscriminatory manner.
FMLA leave is unpaid, but, the new rules empower employers to require employees on FMLA to use concurrently any and all paid time off (sick, vacation and personal days).
Under the old rules, an employee could go onto FMLA leave and not be required to notify his employer until two days after returning to work. Lack of advance notice for unscheduled absences is one of the biggest disruptions employers point to as an unintended result of FMLA. Now the worker must follow established company call-in and notification procedures just as for sick days and normal leave requests.
What will be different for employees?
Employees gained some rights and protection from the new rules, as well. Employers are prohibited from charging FMLA leave days to returning workers who can only perform ‘light duty.’ In addition, an employee’s direct supervisor cannot access the employee’s medical records to certify a medical condition. The new rules also codify the DOL’s longstanding position that employees may voluntarily settle or release their FMLA claims without court or DOL approval, while still prohibiting employers from trying to get employees to waive their prospective FMLA rights.
What’s different about military leave?
The new regulations offer some clarity on the Military Family Leave Amendments, which allow military families to use up to six months’ leave when a service member gets hurt. Aunts, uncles, grandparents and first cousins of military personnel will now be able to use unpaid leave. By comparison, in nonmilitary families only spouses, children and parents can take FMLA time. The new rules also define the circumstances in which military families can take FMLA leave. These ‘qualifying exigencies’ include short-notice deployment, military events, child care and school activities, counseling, financial and legal arrangements, rest and recuperation and post-deployment activities.
What is the main thing employers should do in light of these changes?
Employers hoping to leverage the revised FMLA regulations need to centralize leave management processes and implement improved technologies to track the reasons given by employees for needing leave, and the employer’s response. It will be a challenge to most, but more effective, consistent and documented communications with employees appear to be crucial.
CHUCK WHITFORD, JR., CLU, ChFC, is a consultant for JRG Advisors, the management company for ChamberChoice. Reach him at (412) 456-7257 or firstname.lastname@example.org.