Regulations update on tap for FMLA

December 15, 2008
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Sarah Willey said she thinks that overall, the upcoming changes in the federal Family and Medical Leave Act rules will please employers.

“What is really means for employers is that they are certainly going to have to update and revise their FMLA policy, and they’re going to need to train folks to administer the FMLA on the changes,” said Willey, a Kalamazoo-based attorney for Miller Johnson Snell & Cummiskey and chair of the firm’s FMLA Solutions practice group.

The FMLA was enacted in 1993. It requires companies that employ at least 50 people, plus public agencies of any size, to provide up to 12 work weeks of unpaid leave to certain employees for the birth and care of newborns and adopted children; for their own serious health condition; or to care for a spouse, child or parent with a serious health condition.

In February, the law was amended to add specific provisions regarding military families, and the new regulations flesh those out.

After issuing proposed regulations and soliciting public comment earlier this year, the federal Department of Labor issued the new final regulations last month and they go into effect Jan. 16. The more significant changes address intermittent leave, contact with health providers, eligible employees, military-related FMLA leave and new forms, Willey said.

“One thing that employers have struggled with, with regard to the FMLA, is something called intermittent leave,” Willey said. “What intermittent leave is is really leave in any amount of time at all. So if employees or family members of employees have chronic health conditions, then they can be certified to take intermittent leave.

“From an employer’s perspective, that can be a real challenge, particularly if you have a large or a certain percentage certified to take intermittent leave. You end up in a situation where it’s just really hard to staff.”

Plus, a few “bad apple employees” abuse the system by getting certified so they can leave work whenever they want, she said.

Starting next year, employers will be able to ask for fitness for duty notes from doctors, if there are safety concerns, and can require employees using intermittent FMLA leave for a certified chronic condition to see a doctor twice a year, Willey said.

“It’s going to be to everyone’s benefit to make sure that you’re being treated by somebody for this and taking the leave appropriately as your health condition warrants and requires. For employers frustrated by intermittent leave, those changes are going to be very exciting,” Willey said.

The rules also relax prohibitions on talking to workers’ doctors, which has been strictly forbidden. To get around that, employers would need to find a third-party health care provider to make the call and obtain the information from the employee’s provider.

“Certain folks within the organization, like human resources folks, can contact the employee’s health care provider directly, obviously with the consent from the employee. That, I think, is a big deal,” Willey said.

The FMLA applies, at covered companies, to employees who have worked at the organization for at least 12 months, although those months do not have to be consecutive, but do have to have occurred within seven years; and have worked at least 1,250 hours during the previous 12 months, Willey explained. The worker also must be located at a company location that counts at least 50 workers within 75 miles.

“It’s meant to apply to someone who is at least regular part-time,” Willey said.

The provisions affecting military families now will have regulations that detail implementation of questions that had been left open.

“That part of the regs is obviously going to be really important for employers, for example, by military bases, etc.,” Willey said.

The law allows FMLA leave for situations that are related to the active duty of a parent, child or spouse, she said, under the February amendments. It extends the concept of “child” — defined as under age 18 — to include offspring of any age for the purpose of military-related leave.

Congress’ wording allowed leave, if a family member is or has been deployed to active duty, for “qualifying exigencies.”

“No one knew what that meant,” Willey said. “The Department of Labor has actually defined it very broadly to include things like child care and school activities … with the idea they are sort of having to hold down the home front and don’t have the spouse to help them.”

The DOL also completely revised the medical certification form used to apply for FMLA leave. Created back in the 1990s, the single form drew pretty much universal scorn over the years, Willey said.

“Everyone agrees that form is terrible,” she said. “Employers hate it, employees hate it, and perhaps most of all, health care providers really hate it. It’s just really confusing. They tried to cram it all into one form.”

The form is being replaced by four forms that cover different types of leave allowed under the FMLA, Willey said. The forms and the process will be handled in two steps. Different forms will be used for different types of leave. They separate the application for FMLA from the certification of the condition or situation, Willey said.

“After the employee returns the certification, there is a second form telling them whether the FMLA is approved and actually designates it as FMLA leave. Even though it’s an additional administrative step, it’s less confusing for employees and the employers,” she added.

Miller Johnson is sponsoring two seminars regarding the new regulations. One is set for 9-11 a.m. Jan. 6 at the Western Michigan University East Beltline Conference Center in Grand Rapids. Another is planned for 9-11 a.m. Jan. 8 at the WMU Fetzer Center in Kalamazoo. To register, see www.millerjohnson.com

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