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New FMLA Regulations Change Rules on Notice and Certifications

New FMLA Regulations Change Rules on Notice and Certifications

Find out what the new FMLA rules require.

On November 17, 2008, the Department of Labor (DOL) released new regulations interpreting the Family and Medical Leave Act (FMLA). These regulations provide first-time rules for the military family leave provisions passed earlier in 2008. They also make significant changes to the existing rules for other types of FMLA leave, particularly regarding notice requirements and medical certifications. The new regulations are scheduled to go into effect on January 16, 2009.

Military Family Leave

In January 2008, Congress passed a law creating two new types of FMLA leave: “qualifying exigency” leave, which allows family members of those who are called to active duty to take time off to handle immediate issues, and military caregiver leave, which allows employees to take time off to care for family members who suffer a serious illness or injury while on active duty military service. The new regulations explain in detail what constitutes a qualifying exigency, how much time off employees can take for these types of leave, what notice and certification employees must provide, and more. To learn about these provisions, see Family and Medical Leave for Military Family Members.

Employee Notice Requirements

The FMLA requires employees to give notice of their need to take FMLA leave. Here are some of the changes the new regulations make to these requirements:

  • The new regulations require employees to give notice 30 days in advance if their need for FMLA leave is foreseeable, just as the old regulations did. Now, however, an employee who does not give 30 days’ notice must explain why such notice was not practicable, if the employer requests.
  • Employees still have to give as much notice as is practicable when they need leave for an unforeseeable reason. However, the regulations now state that it should be practicable to give this notice within the deadlines and following the procedures prescribed by the employer’s usual notice requirements for missing work.
  • An employee who has already used FMLA leave for the same reason must refer either to that reason or to the need for FMLA leave when giving notice.
  • An employee who wants to substitute paid leave available under a company policy for unpaid FMLA leave must meet all of the requirements of company policy. For example, if an employer requires two weeks’ advance notice for vacation requests, an employee must give notice two weeks in advance to substitute vacation time for FMLA leave—even if the employee needs FMLA leave for an emergency that wasn’t foreseeable two weeks in advance. The employee is still entitled to FMLA leave for that time, but may not substitute paid leave. This is a major change from the old rules, which allowed employees to take paid leave as long as they gave the notice required by the FMLA, no matter what the employer’s policy required.
Employer Notice Requirements

Employers must give employees a series of notices about their rights under the FMLA and their obligations when using leave. The new regulations divide these notice requirements into four separate documents:

  • A general notice, which must be posted conspicuously (it can be done electronically, as long as it’s accessible to employees and applicants). This notice must also be distributed to employees, either as part of the employee handbook or other written materials or as part of the paperwork given to each new hire.
  • An eligibility notice, which must be provided to employees who request FMLA leave. The notice must indicate whether the employee is eligible for leave; if not, the notice must state at least one reason why the employee is ineligible (for example, that the employee has not yet worked for the employer for 12 months). This notice must be provided within five business days after the employee’s request.
  • A rights and responsibilities notice, which provides a variety of information about FMLA leave, including whether the employer will require a medical certification and/or fitness for duty certification, payment of healthcare premiums, using paid leave, and more.
  • A designation notice, which either designates time off as FMLA leave or notifies the employee that time off will not be designated as FMLA leave. For FMLA leave, the notice must indicate how much leave will be counted against the employee’s 12-week entitlement, if the amount of leave is known. If the amount of leave is unknown, the employee can request a written statement of how much leave has been counted against his or her entitlement no more often than every 30 days. This written statement can be a notation on the employee’s pay stub.

The new regulations create a number of new forms for certification of a qualified exigency, a serious illness or injury (for military caregiver leave), an employee’s own serious health condition, and a family member’s serious health condition.

The serious health condition certifications request information that is largely similar to what the old form requested. However, the new regulations change the certification process somewhat:

  • If the employer is permitted to request additional information from the employee’s workers’ compensation provider, in accordance with a paid leave policy or disability plan, or in connection with an ADA-covered disability, the employer may consider that information in determining whether the employee has a serious health condition.
  • Once the employer receives a certification, it may contact the health care provider directly to authenticate the certification (that is, to verify that the form was completed or authorized to be completed by the person who signed it) or to clarify it (that is, to understand the handwriting or the meaning of a response on the form). The employee’s direct supervisor may not be the person who contacts the employee’s health care provider.
  • If the employee submits a certification form that’s not in English, the employee must translate it upon the employer’s request.
  • An employer may request recertification every six months for an ongoing condition.
  • An employer may require an employee to submit a fitness for duty certification that specifically addresses the employee’s ability to perform the essential functions of the job, but only if the employer informs the employee of this requirement and provides a list of essential job functions with the designation notice.

The new regulations make a number of other changes as well. All of these changes have garnered mixed reactions: Employer advocates applaud them (although some wish they had gone further); employee advocates criticize them (although the military family leave provisions have had a better reception).

Because they are scheduled to take effect before a new administration takes office, these regulations won't be rescinded by the Department of Labor before they become effective. The question going forward is what Congress will do: The Congressional Review Act gives Congress the right to overturn recently finalized regulations, and some members of Congress are no doubt eager to look at a number of regulations issued in the last months of the Bush administration.

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