November 19, 2008

This is Utah SHRM Legal-mail no. 2008-25 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in a HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

CONTENTS:  SPECIAL FMLA EDITION
-        NEW FMLA REGULATIONS RELEASED
-        MILITARY LEAVE FOR QUALIFYING EXIGENCIES
-        FORMS UPDATED
-        GENERAL EMPLOYER NOTICE OBLIGATIONS
-        SPECIFIC NOTICE OBLIGATIONS
-        FAILURE TO PROVIDE NOTICE IS INTERFERENCE
-        MEDICAL CERTIFICATION
-        FITNESS FOR DUTY
-        RELEASES
-        EMPLOYEE NOTICES AND DISPUTES
-        EFFECTIVE DATE

NEW FMLA REGULATIONS RELEASED:  After working on and revising them for the last couple of years, the United States Department of Labor (DOL) recently issued new regulations (a couple of hundred pages worth) interpreting and explaining the Family and Medical Leave Act of 1994 (FMLA).  FMLA currently applies to any employer with 50 or more employees.  Employees are eligible to take FMLA after they have been employed for 12 months (need not be consecutive),  have worked at least 1250 hours during the 12 months before the proposed leave, and when they work within 75 miles of a site with 50 or more employees.  The regulations are detailed and somewhat mundane, but employees should have their FMLA coordinator study them carefully.  Here is a link to a DOL fact sheet on the new regulations--  http://www.dol.gov/esa/whd/fmla/finalrule/factsheet.pdf  -- and to the DOL’s webpage on the same: http://www.dol.gov/esa/whd/fmla/finalrule.htm  Some of the most important and/or interesting highlights of the new FMLA regulations are summarized below.

MILITARY LEAVE FOR QUALIFYING EXIGENCIES:  The 2008 amendments to the FMLA allow leave for “qualifying exigencies” when an employee’s family member is called to active military duty.  The new regulations define the phrase “qualifying exigencies” to include:  (1)  short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financially/legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) other activities an employer/employee agree are covered.  Make sure you add these types of events to the list of reasons an employee can take FMLA leave.

FORMS UPDATED:  DOL has revised, updated and added to the forms employers should use for FMLA purposes, such as employee notification and healthcare provider certification.  You can find the new forms attached (pdf) and at the end of the published regulations, which are found at: http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763

GENERAL EMPLOYER NOTICE OBLIGATIONS:  Employers must post (electronic postings can work) general FMLA notices even if they have no employees actually eligible to take FMLA leave.  If an employer does not have a handbook with required FMLA information, it must give each employee notice of his/her general FMLA rights at the time of hiring.  Multiple languages must be used if a significant group of workers is not proficient in English.  Electronic-only posting is permissible if everyone has access to the same.

SPECIFIC NOTICE OBLIGATIONS:  Two new separate forms have been created to allow employers to designate leave as FMLA time and to inform employees of their eligibility, rights and responsibilities under FMLA.  Using these forms, an employer must notify an employee of his/her leave eligibility within five days of a leave request.  If eligible for leave, employees must also be told, in writing, their rights and responsibilities.   This includes medical certification requirements, rights to use paid leave, insurance premium obligations, and job restoration rights/obligations.   This form can be distributed electronically.  Final designation of leave is not required until the employer receives medical certification forms back, but must occur within five days after that time.  Retroactive leave designation is allowed if this does not cause the employee harm or injury.

FAILURE TO PROVIDE NOTICE IS INTERFERENCE:  If an employer does not give the required written notices, it can be held liable for illegal interference with FMLA rights.  This is increased liability imposed by the new regulations.

MEDICAL CERTIFICATION:  The new regulations provide a new form for employers to use when obtaining medical certifications of an employee’s need for leave.  A separate form is available for employee family member serious health conditions, including regarding what care an employee will provide to that family member.  The new regulations also allow the use of relevant information obtained as part of an Americans with Disabilities Act (ADA) or worker’s compensation process.  The employer must notify the employee in writing of certification form deficiencies and give him/her seven days to fix it.  If not fixed within that time, leave can be denied.  Employers (but not an employee’s direct superior) can now directly communicate with medical providers if the involved employee consents to the same.

FITNESS FOR DUTY:  Employers now may ask for more than a simple statement of fitness for duty, including for intermittent leave situations if safety concerns exist.

RELEASES:  Past (but not prospective) FMLA claims now can be released by employees without court or DOL approval.

EMPLOYEE NOTICES AND DISPUTES:  Employees must explain their sickness or absences to trigger employer FMLA obligations.  Calling in sick or absent without explanation is not enough to do so.  To attribute a current absence to a past FMLA approved leave, an employee must specifically reference the previous reason for leave.  If employees and employers dispute whether leave is FMLA leave, they must try to resolve the dispute through discussions and document the same.

EFFECTIVE DATE:  The new FMLA regulations take effect on January 16, 2009.  FMLA is a well-intentioned, but vague and complex law.  It is difficult to administer, and often abused (ergo the alternative name of the “Friday Monday Leave Act”).  It has now been revised significantly.  With the new regulations, these compliance challenges remain, and perhaps loom even larger than before.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com
  
Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.