The New FMLA Regulations Take Effect January 16, 2009: Are You Ready?

Volume 8, Issue 1
January 12, 2009

If you are an employer covered by the Family and Medical Leave Act (FMLA), there are some important steps you need to take by January 16, 2009, the date on which the new FMLA regulations become effective.

1. Post the New FMLA Poster

The Department of Labor (DOL) has published a new FMLA poster entitled "Employee Rights and Responsibilities" (Publication 1420) which must be posted in prominent locations in your workplace with legible text so that employees and applicants can view it. This poster may be posted electronically, but such posting needs to be in conspicuous places where it can be readily seen by employees and applicants. If you have any questions about posting requirements, please contact a KZA attorney.

2. Revise Your FMLA Policy

If your company issues an employee handbook to employees, you must include the foregoing Employee Rights and Responsibilities poster in your handbook. You can either include the poster itself with your existing FMLA policy, or you may duplicate the language of the poster in your handbook. All information contained in the poster, including how employees can file complaints regarding FMLA violations, must be included in your handbook. KZA is presently revising its prototype FMLA policy which will be provided in a future issue of the KZA Employer Report.

3. Learn How to Use the New FMLA Forms

Along with the new regulations, the DOL has published several new forms for employers to use in connection with FMLA requests. Previously, there were only two (2) forms, the WH-380 (Certification of Health Care Provider) and WH-381 (Employer Response to Employee Request for Family or Medical Leave). These forms should no longer be used as of January 16, 2009.

The Certification of Health Care Provider form has now been separated into two (2) different forms. Form WH-380-E is the certification to be used for an employee's serious health condition. The other certification, Form WH-380-F, is to be used for a family member's serious health condition. For ease of reference, just remember that for Form WH-380, "E" stands for employee and "F" stands for family member. As requests for leave based on a serious health condition are made, please make sure you are using the correct certification form.

Revised form WH-381 is now to be used to notify employees of their eligibility for FMLA leave and to inform them of their rights and responsibilities. This form should be issued within 5 business days to any employee requesting leave which may be FMLA-qualifying. This form will notify an employee of his/her eligibility for FMLA leave, as well as his/her rights and responsibilities. For example, this form will tell the requesting employee whether a certification will be required and whether accrued paid time off must be used during the period of absence. Remember that if you do require a certification, you must give the employee at least 15 calendar days to furnish it.

Form WH-382 is a new form entitled "Designation Notice." This 1-page form should be issued to an employee requesting FMLA leave within 5 business days after supporting documentation (i.e., a medical certification) has been provided and a determination has been made that the leave requested will either be designated as FMLA leave or non-FMLA leave.

The final two new forms, WH-384 and WH-385, are used only in situations pertaining to the new military leave entitlements. WH-384 is the Certification of Qualifying Exigency for Military Family Leave. As detailed in the December 31, 2008 issue of the KZA Employer Report, leave may be taken for qualifying exigencies occasioned by a family member's active duty or call to active duty. Similarly, WH-385 is the Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave. For qualifying exigencies, an employee may take up to 12 weeks of leave within a 12-month period. By contrast, leave to care for an injured or ill servicemember may be taken for up to 26 weeks within a single 12-month period.

4. Allow Employees to "Cure" Incomplete or Insufficient Certifications

The new regulations provide that if an employee furnishes either an incomplete or insufficient certification to support the leave request, the employer must allow the employee 7 calendar days to cure the deficiency. Specifically, the employer must advise the employee, in writing, as to what additional information is needed. A certification is considered incomplete if one or more of the applicable sections has not been completed. An insufficient certification may also occur where, even though the form itself is complete, the information provided is vague, ambiguous or non-responsive. If the deficiencies are not cured, the employer may deny the taking of FMLA leave.

5. Know the Rules for Direct Contact with an Employee's Health Care Provider

The new regulations state that employers can now directly contact an employee's health care provider for either "clarification" or "authentication" after the employee has furnished a completed certification. Such contact may only occur after the employee has been afforded time to cure a deficient certification (as stated above). This contact may not be made by the employee's direct supervisor. Instead, contact with a health care provider can be initiated by another health care provider, a human resources professional, a leave administrator or another management official. The employer may not request additional information. As a result, direct contact with a health care provider can be made either to: (1) provide a copy of the certification and verify that the information contained in the certification was actually completed and/or authorized by the health care provider who signed the document; or (2) clarify the handwriting on the document or understand the meaning of a particular response.

The new FMLA regulations are complex, and the foregoing information is merely intended as a brief summary of the most notable changes which become effective on January 16, 2009. If you have any further questions, please feel free to contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.