October 30, 2008

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Employer Alert - DOL Updates FMLA Regulations

Following the recent military leave amendments, the Department of Labor ("DOL") issued much-anticipated proposed changes to the Family and Medical Leave Act of 1993 ("FMLA or the "Act"). The proposed regulations are the DOL's first major overhaul of the Act and include many changes to the existing FMLA regulations, the most significant of which relate to the rules on notice requirements, the medical certification process, and the definition of serious health conditions.

In summary, key proposals include:

Tightening of Notice Requirements

• Employee must notify employer "as soon as practicable" when leave is unforeseeable. The DOL expects that an employee can practicably notify his/her employer either the same day or the next business day.
• Employee must give "sufficient information" to put employer on notice that leave may be FMLA-qualifying, including an inability to perform the job, the anticipated duration of leave, and whether they intent to visit a health care provider.
• Additional administrative burdens imposed on employers to communicate more detailed information to employees regarding eligibility; however, the amount of time to provide such information is extended from two to five days.
• Requires employer to both post and distribute FMLA information.

Medical Certification Process

• In certain cases, allow an employer to contact an employee's health care provider directly for clarification or authentication of documents.
• Employer must give employee notice of an incomplete or insufficient certification in writing, and seven calendar days to cure deficiencies.
• Propose several revisions to the medical certification form itself to make it easier to understand and complete, and allow health care providers to disclose diagnosis information.
• Seeks to strengthen the recertification process and make fitness-for-duty certification more rigorous.

Serious Health Condition

• Proposal redefines "continuing treatment" for a serious health condition. The new definition is more restrictive and requires that, where continuing treatment is defined by two visits to a health care provider, the two visits occur within 30 days of the beginning of the period of incapacity. Currently, the time period is undefined.

Military Leave Entitlements

• The DOL also requested comment on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act.
• New leave entitlements include 26 workweeks to care for an injured or ill servicemember and 12 weeks due to a qualifying exigency arising out of the fact that a covered family member is, or has been, called to be on active duty.
• The DOL has issued a notice regarding Military and Family Leave which should be posted alongside an employer's current FMLA notice. A sample posting can be found at http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.

Employers must ensure their FMLA policies reflect the new types of servicemember-related leave and should stay informed as to the status of the proposed regulations. Once the regulations are finalized, employers should further revise their FMLA policies, and ensure those responsible for compliance are trained on the new rules.

This topic will be addressed by the head of Ryley Carlock & Applewhite's Labor and Employment Department, at Sterling Education's Seventh Annual Employment Law Update in Arizona on November 13, 2008. For questions regarding any aspect of the FMLA, Ellen J. Glass at 602.440.4887; or any member of Ryley, Carlock & Applewhite's Labor and Employment Department