The Department of Labor issued 762 pages of regulations covering the FMLA. . As expected, 2009 will be a busy year for Human Resources Professionals because of compliance and legislative changes. The following is a brief summary of the regulatory changes:
Military Caregiver Leave: Implements the expanded FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.
Leave for Qualifying Exigencies for Families of National Guard and Reserves: The expanded FMLA protections allow families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies." The rule defines "qualifying exigencies" as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.
The Ragsdale Decision/Penalties: The updated rule contains technical changes to be consistent with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide Inc. The court ruled that the regulation’s so-called "categorical" penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave) was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law’s remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable for the leave and penalties.
Waiver of Rights: Employees may voluntarily settle their FMLA claims without court or DOL approval. However, prospective waivers of FMLA rights are prohibited.
Serious Health Condition: The six individual definitions of "serious health condition," are continued with guidance on their implementation. First, the rules clarify that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second, they define "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.
Light Duty: Time spent in "light duty" work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.
Perfect Attendance Awards: Companies need not grant a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA leave — but only if the employer treats employees taking non-FMLA leave in an identical way.
Employer Notice Obligations: All employer notice requirements into a "one-stop" section of the regulations to clear up some conflicting provisions and time periods. Further, the final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.
Employee Notice: Employee must follow the employer’s normal and customary call-in procedures, unless there are unusual circumstances. The final rule modifies the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner.
Medical Certification Process (Content and Clarification): The rule limits who may contact the health care provider and bans an employee’s direct supervisor from making the contact. The rule address the requirements of HIPAA’s medical privacy rule to communications between employers and employees’ health care providers.