Businesses that have at least 50 employees in a 75-mile radius are mandated to comply with the Family Medical Leave Act of 1993. As of Jan. 16, however, compliance is required for the expanded and entirely rewritten regulations enacted by the Department of Labor.
FMLA grants unpaid, job-protected leave of up to 12 weeks per year for serious health conditions of employees or covered family members, or for the birth or adoption of employees' children.
There are several changes that stand out.
First, the definition of "continuing treatment" is clarified. Per the 1993 FMLA, a medical condition qualified as a serious health condition if the employee was incapacitated for three consecutive calendar days and was under the continuing treatment of a health care provider.
Now, continuing treatment means that upon first becoming incapacitated, the employee must see a health care provider within seven days and then twice more within 30 days. Also, with regard to chronic health conditions, the employee must see a health care provider at least twice a year.
Another change addresses light-duty assignments during FMLA leave. Under the 1993 FMLA legislation, if a serious health condition made an employee incapable of executing any essential job functions, the employee was not required to undertake light duty assignments during leave. The new regulations specify that if an employee chooses to accept a light-duty assignment, it does not count against FMLA leave entitlement. Also, the employee's right to job restoration is held in suspension while the light duty work is performed, until the conclusion of the 12-month FMLA leave year.
With the new regulations, employers also are required to provide three notices, rather than the FMLA poster and Employer Response Form previously mandated. Now, employers also are obligated to provide for employees a new Designation Notice form and a new Notice of Eligibility and Rights and Responsibilities form. Other forms to consider:
• Certification of Health Care Provider for Employee's Serious Health Condition;
• Certification of Health Care Provider for Family Member's Serious Health Condition;
• Certification of Qualifying Exigency for Military Family Leave; and
• Certification for Serious Injury or Illness of Covered Servicemember - for Military Family Leave.
Access to information
FMLA changes also affect who can acquire information about an employee's health condition. Now, a designated company representative other than the employee's supervisor can acquire facts about the employee's health condition. Employers may contact the health care provider to authenticate or verify information in a medical certification form, and the health care provider is able to provide an itemization of which job functions an employee is unable to execute.
Certification must be given by the health care provider stating leave is necessary, along with information concerning the anticipated frequency and duration of leaves. Intermittent leave must be calculated in the shortest increment of time used for other forms of leave, or one hour, whichever is smaller.
Several other differences are worthy of mention. An employer is able to disqualify an employee on FMLA leave from receiving an achievement bonus if he did not attain the goal because of the leave, as long as an employee under non-FMLA leave is treated the same. Employees may voluntarily settle and release FMLA claims without the court. Any form of leave time may be used concurrently with FMLA leave; previously, only sick days or medical leave could be utilized concurrently with a serious health condition, but not vacation or personal leave days. An employer is able to designate leave as retroactive at any time.
Military leave issues
The National Defense Authorization Act for fiscal 2008 created two new categories of FMLA leave for families of military service members. First, "qualifying exigency" leave is based upon the call to active duty of employees' family members who are in the National Guard or Reserves.
Second, "military caregiver" leave gives employees up to 26 weeks of leave in a single 12-month period to care for military service member family members with serious illnesses or injuries.
The compliance date has passed, so implementation of the new regulations should be a priority. Include a notice in your employee handbook or other written communication tool to inform employees. Otherwise, you must give the notice upon hiring.
Inform employees of eligibility, rights and responsibilities, and your designation of the employees' leave as FMLA within five days of the date leave is requested or the date when you learn that employee leave may be covered under FMLA.[[In-content Ad]]
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.
