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FAMILY AND MEDICAL LEAVE ACT (FMLA) UPDATED
Effective January 16, 2009
On November 17, 2008 the U.S. Department of Labor (DOL) issued its final rule on updating the FMLA Regulations. The new regulations become effective January 16, 2009. For more information concerning the new regulations go to www.dol.gov.
Some of the more significant changes to the FMLA are:
- Call-in Process. The new regulation allows employees to follow the employer's "customary call-in procedures". Former regulations required employees to notify the employers of the need for unscheduled FMLA within one (1) to two (2) full business days. The employee notice provisions still require at least thirty (30) days advance notice for foreseeable leave. The new provision allows employers to ask the employee why thirty (30) days is not practical.
- Military Leave Provisions. The new FMLA leave allows an employee who is a spouse, son, daughter, parent or next of kin of a covered service member to take 26 work weeks of leave during a 12 month period to care for the service member who became injured or ill as a result of the Military Service.
- Medical Certification. Under the new regulations the employer may have direct contact with the employee's healthcare provider ("HCP") as long as the employer's questions are limited to issues directly related to FMLA leave certification. Under the old rule the employer, with the employee's permission, had to retain the services of HCP to contact the HCP. An employee's permission is no longer needed to contact a HCP for verification of information.
- Serious Health Condition. The new language regarding what constitutes "continuing treatment" for purposes of defining "serious health condition" is a period of incapacity or chronic condition with treatment two or more times by a healthcare provider which must take place within a thirty-day period. For chronic conditions requiring periodic visits for treatment such visits must take place at least twice a year.
- Employer Notice. Employers are given five business days to post required FMLA notices. The old law was one to two business days.
The following eleven states have statutes similar to the FMLA which need to be reviewed if you have employees in those states:
California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin as well as the District of Columbia.
Do you have questions or comments about recent legislation or legal decisions? Email them to arobinson@lawsnakard.com. We'll post your question and our analysis in upcoming newsletters.
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