The revisions to the Family and Medical Leave Act that were published last November went into effect on Jan. 16. The act provides unpaid leave to eligible employees for family and health-related reasons. Employers need to revise their FMLA policy to reflect the changes, or risk being dragged to court over a mistake. The new regulations, along with all six new FMLA forms, are available for download from the Department of Labor’s Web site, www.dol.gov/esa/whd/fmla/.
Smart Business spoke with Donna J. Geary, a partner with Jackson Lewis LLP, about the impact the FMLA changes will have on business owners.
How will the newest changes to the FMLA affect employers?
Managing absences will be more time-consuming, but the changes are mostly employer-friendly. Employers have been asking for some of these changes for a long time. But implementing the changes will take more work and effort on the part of the employers, especially with the new provisions for an employee to take leave for a family member in the military.
Such leave actually passed as an amendment to the FMLA in 2008, but until the Department of Labor issued the new regulations, we didn’t have any regulatory guidance interpreting the service member leave. We knew it was there, and we knew employers had to give leave to employees for a family service member, but until the new regulations were published last November, we didn’t know exactly how to provide the leave.
Now we know what employers are supposed to do with regard to service member leave and, on top of that, the prior FMLA provisions that employers were administering have been updated.
How can the overall changes to the FMLA benefit employers?
The form that the employer gives to the employee to take to the health care provider to have certified is different. Now there is a place on the form for the employee’s job title, work schedule and essential job functions. Now the health care providers know — from the employer — what the job description is and what the essential functions are. Thus, employers have more input, rather than the physician just listening to the employees describe how difficult their job is.
It’s now better for employers, but they have to do more work.
What are some FMLA-related mistakes employers should try to avoid?
The classic example is employers don’t designate an absence as an FMLA-qualifying event. Say it’s an employee’s 20th absence under the attendance system and the employer terminates the employee when some of those absences should have been designated as FMLA. That’s when the employee can go to court to file a lawsuit or can contact the Department of Labor, the federal agency administering the FMLA. The employer will either have to take the employee back, or settle and pay some damages.
Before an employee is terminated by a manager or supervisor, employers should have a system in place where attendance is reviewed by someone in HR to see if they’re talking about potentially FMLA-qualifying absences. Make sure someone in the know reviews the termination before it happens to see if they’re lowering the risk of litigation or if they’ve made a mistake.
This is something some employers don’t know: Most employers know they had to have an FMLA policy in a handbook. Now, in addition to having FMLA information in the employee handbook, the employers have to give to all new employees a copy of the FMLA notice form that employers are required to post in the workplace.
How can a company minimize the possibility of FMLA-related mistakes?
Employers need to train the HR people. They need to receive updated training on the new regulations so that they know what they’re doing. And the employers need to train managers and supervisors, too, because generally the manager or supervisor is the first person an employee speaks with to say, ‘I was admitted to the hospital last night.’ The managers and supervisors don’t need to know the detail HR does, but they should at least know that such may be a potential FMLA situation.
This is especially an issue with the service member leave. When an employee comes in and says, ‘My sister is coming back from Iraq and I want to go take care of her,’ the manager or supervisor needs to know that siblings are covered under the new provisions of the FMLA providing leave to employees to care for an injured family service member.
It is also important to remember that there is individual liability for management, HR — anybody who makes an FMLA decision. That means not only can the employee sue XYZ Corporation, they can individually name the manager or supervisor. That’s another reason managers and supervisors need to understand at least the basics.
DONNA J. GEARY is a partner with Jackson Lewis LLP. Reach her at (412) 232-0154 or firstname.lastname@example.org.