The Family and Medical Leave Act
(FMLA) is going through some changes,
and business owners will need to pay
particular attention in 2009 to make sure they
remain compliant.
On November 17, 2008, the Department of
Labor (DOL) published its final rule in the
Federal Register to update and expand the
FMLA, which was passed into law in 1993.
The new rules take effect January 16, 2009,
and include new military family leave entitlements as well as revisions designed to clarify
the requirements that the FMLA imposes on
both employees and employers.
“FMLA has long been a source of litigation
and confusion in the workplace and the new
rules are an attempt to improve communication between employees, employers and
health care providers to make the process
operate more smoothly and provide clarity
for both workers and employers about their
responsibilities and rights under FMLA,” says
Chuck Whitford, Jr., CLU, ChFC, a consultant
for JRG Advisors, the management company
for ChamberChoice.
Smart Business spoke with Whitford
about the new FMLA changes and how
employers can stay on top of them.
What’s the first thing a company should know
about the FMLA changes?
Most importantly, while the changes were
made to improve communication lines, they
still may cause confusion and litigation. The
revised regulations are more than 750 pages
long and most employers do not have the
resources to master the complex rules on
FMLA leave. Many are cutting staff and
reducing training budgets, but they can’t
afford to ignore the issue. FMLA has become
a major compliance obligation. In the midst
of today’s economic uncertainty, attendance
and productivity are the keys to a company’s
survival. It is in any employer’s best interest
to retain the services of a competent consultant to ensure that the new rules are being
followed.
What changes should employers be worried
about?
The biggest problem most employers feel
that FMLA creates is the potential abuse of
intermittent leave rights. The new rules provide some assistance. For example, workers
with chronic conditions will be required for
the first time to certify that they visit a doctor
at least twice a year for that condition. The
new rules also require workers to warn their
bosses that they are planning to miss work
‘absent unusual conditions.’ Employers will
now be allowed to require ‘fitness for duty’
evaluations to make sure that workers who
took FMLA leave are fit to return to their specific jobs. Employers will also be allowed to
consider FMLA absences in determining
bonuses and other incentive rewards. They
will be able to disqualify employees when the
employee has not met the specific job-related
goal due to FMLA leave, so long as this is
done in a nondiscriminatory manner.
FMLA leave is unpaid, but, the new rules
empower employers to require employees
on FMLA to use concurrently any and all paid
time off (sick, vacation and personal days).
Under the old rules, an employee could go
onto FMLA leave and not be required to notify his employer until two days after returning
to work. Lack of advance notice for unscheduled absences is one of the biggest disruptions employers point to as an unintended
result of FMLA. Now the worker must follow
established company call-in and notification procedures just as for sick days and normal
leave requests.
What will be different for employees?
Employees gained some rights and protection from the new rules, as well. Employers
are prohibited from charging FMLA leave
days to returning workers who can only perform ‘light duty.’ In addition, an employee’s
direct supervisor cannot access the employee’s medical records to certify a medical condition. The new rules also codify the DOL’s
longstanding position that employees may
voluntarily settle or release their FMLA
claims without court or DOL approval, while
still prohibiting employers from trying to get
employees to waive their prospective FMLA
rights.
What’s different about military leave?
The new regulations offer some clarity on
the Military Family Leave Amendments,
which allow military families to use up to six
months’ leave when a service member gets
hurt. Aunts, uncles, grandparents and first
cousins of military personnel will now be
able to use unpaid leave. By comparison, in
nonmilitary families only spouses, children
and parents can take FMLA time. The new
rules also define the circumstances in which
military families can take FMLA leave. These
‘qualifying exigencies’ include short-notice
deployment, military events, child care and
school activities, counseling, financial and
legal arrangements, rest and recuperation
and post-deployment activities.
What is the main thing employers should do
in light of these changes?
Employers hoping to leverage the revised
FMLA regulations need to centralize leave
management processes and implement
improved technologies to track the reasons
given by employees for needing leave, and
the employer’s response. It will be a challenge to most, but more effective, consistent
and documented communications with
employees appear to be crucial.
CHUCK WHITFORD, JR., CLU, ChFC, is a consultant for JRG Advisors, the management company for ChamberChoice. Reach him at
(412) 456-7257 or [email protected].
