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 [email protected].
