Just give it to me straight: What’s required under the FMLA?

It was about this time last year we were on the edge of seats waiting for the highly publicized changes to the Family Medical Leave Act (FMLA) to be released. Early 2008 brought an amendment to the FMLA known as the National Defense Authorization Act which added two new circumstances in which employees are entitled to family medical leave. What does 2009 bring?The Department of Labor (DOL) has recently issued new regulations interpreting the FMLA, which are scheduled to take effect on January 16, 2009. These regulations are intended to improve to provide needed clarity for workers and employers regarding their rights and responsibilities under the Act.

So, what does this mean for employers? It means the Act isn’t as fuzzy, but it also means employers must strictly comply with its requirements. Let’s break down your requirements under the FMLA: the past, the present, and the future:

1. Create or update an FMLA policy. Employers subject to the FMLA requirements – those with 50 or more employees in a 75 mile radius - should have a written policy communicating their compliance with the Act. The policy should address qualifying circumstances in which leave will be granted, the company’s requirements for medical certification, and other FMLA practices the company follows, such as how the FMLA year is calculated and whether or not the use of paid time off (PTO) is required as part of FMLA leave. Consistent with the Act’s amendments and the final rules scheduled to take effect shortly, if you have a written FMLA policy be sure that you update it accordingly.
2. Grant leave when required. Employers operating with 50 or more employees within a 75 mile radius must grant an employee FMLA leave if the employee has worked for the employer for at least 12 months (which need not be continuous) and 1,250 hours within the past year. And of course, an employee is only entitled to FMLA leave under certain prescribed circumstances, which include: the birth or adoption of a child; for the employee’s own serious health condition or the serious health condition of a family member; a qualifying “exigency” for a covered family member on active duty for short-notice deployment, military events, and post-deployment activities; and to care for a spouse, son daughter, parent or next of kin who is a member of the armed forces and is undergoing medical treatment or is medically unfit to perform military duties due to an injury or illness incurred while on active duty.
3. Require notice. When possible, employees requesting leave must provide 30 days notice of their need for FMLA leave. If an employee fails to provide the required 30-days’ notice of their intention to take FMLA when there is no reasonable excuse for the delay, the employer is allowed to postpone the start of leave for at least 30 days from the date the employee provides notice. When leave is not foreseeable, the Act previously permitted employees to notify their employers of their need to take FMLA leave up to two business days after an absence. The new rules, which take effect January 16^th, now require employees to follow the employer’s regular call-in procedures for reporting an absence, unless there are unusual circumstances preventing the employee from doing so.
4. Requiring medical certification. FMLA does not require that employers demand medical certification from employees. However, if you do request medical certification, you must provide employees with written notice of this requirement. Just remember, if you request medical certification, you must do so consistently, not on a case-by-case basis. An employee’s failure or refusal to provide the certification if it is requested is a valid reason to deny leave.
5. Ensure privacy. In order to protect employee health information, the final rules indicate that those contacting health care providers in order to obtain medical certifications must be either a human resource professional, leave administrator, or a management official. Under no circumstances may the individual be the employee’s direct supervisor. Those permitted to contact health care providers may not ask for additional information beyond what is required in the certification form.
6. Notify employees of their rights. When the final regulations take effect January 16th, employers will be required to provide employees with written notification of their rights and responsibilities under the Act. A general notice about FMLA - through a poster, a policy in the company’s employee handbook, or upon hire – is required. In addition, an eligibility notice along with a rights and responsibilities notice must be provided within 5 days of a leave request and a designation notice must be provided within 5 days of determining whether the leave is covered under FMLA.
7. Offer flexibility. Intermittent leave allows employees to take a day off of work here and there while returning to work in between. For example, an employee who needs to take his mother for radiation treatment every Friday for 10 weeks would require intermittent leave of 10 days across a 10 week period. Reduced leave allows an employee to take a part of a day off; the smallest interval of time allowed for reduced leave is the smallest interval of time the employer uses in its payroll system to account for absences or leave.Intermittent or reduced leave is not permitted for the adoption, foster care, or birth of a child, unless the employer and the employee agree to such an arrangement.
8. Request a return to work authorization. Employers may require that employees who take leave due to their own serious health condition are not permitted to return to work until they provide medical certification that indicates their ability to resume their essential job functions with or without a reasonable accommodation. If accommodation is necessary, the fitness-for-duty request should ask the healthcare provider to specify the needed accommodation. If you do require this certification, it must be applied uniformly to all employees returning to work from a leave due to their own serious health condition.
9. Light duty. An employer may not require, but an employee with a serious health condition may voluntarily agree to perform “light duty” work to in order to accommodate his or her circumstances. Time spent performing light duty work does not count against an employee’s FMLA leave entitlement.
10. Job restoration. Employees are entitled to be restored to the same (or similar) position held prior to taking leave. Similar positions must allow for the same pay, status and benefits awarded to the employee in their previous position.
11. Retain FMLA records. The FMLA requires employers to retain the following records for a three year period: a record of dates FMLA leave is taken; the hours of FMLA leave taken if in increments of less than one full day; copies of all FMLA notices; records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave; and FMLA-related medical records and documents pertaining to medical certifications, re-certifications, or medical histories of employees or employees’ family members, created for the purposes of FMLA.
12. State requirements. Many states have their own version of family and medical leave (FML) laws. Although some state FML laws mirror the federal requirements, others provide for different provisions and/or cover employers who may not be subject to the federal Family and Medical Leave Act. Employers must comply with the law, state or federal, that provides for greater employee leave rights. For your specific state requirements, visit the Leave of Absence section of our State & Federal Laws.

Understanding your requirements as they pertain to the FMLA or your state-specific family and medical leave laws is essential for ensuring legal compliance. The final rules take effect January 16, 2009 and employers must be sure their policies and practices appropriately reflect the new provisions.