Notice Rules Under New Family And Medical Leave Act (FMLA) Regulations –- Employers Win Some And Lose Some

New FMLA Regulations Took Effect January 16, 2009, Significantly Impacting FMLA Law

On November 17, 2008, the US Department of Labor issued long-awaited updated regulations governing the Family and Medical Leave Act (FMLA), effective January 16, 2009.

The Department said the amended regulations would “help workers and their employers better understand their rights and responsibilities, and speed the implementation of a new law that expands FMLA coverage for military family members.” It also said they provided “needed clarity.”

But, as Steve Bruce of BLR states, “the new rules are neither simple nor succinct: The preamble alone is 556 pages, and the final regulations are just under 200 pages.”

We listed key proposed changes to the FMLA regulations in a post back in March. For the most part, it appears the final regulations embody the key changes proposed, as summarized in that post.

DOL Explanation of Changes in Employer Notice and Leave Designation Obligations Under New FMLA Regulations

According to the Department of Labor:

The final rule consolidates all employer notice requirements into a “one-stop” section of the regulations to clear up some conflicting provisions and time periods.

Further, the final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

FMLA Notice Changes Beneficial to Employers

• General notices of FMLA rights may be accomplished electronically where this would be effective in reaching applicants and employees.
• Although employee request for FMLA leave may be only verbal, employer may require employee to comply with its usual and customary notice and procedural requirements.

  • For example, employer may require employee to contact designated individual or call designated phone number (absent unusual circumstances and provided written notice is not required in emergency situations or for unforeseeable leave).
  • Leave may be delayed for employee’s failure to comply with such requirements, with absences during delay treated as non-FMLA and subjected to regular attendance policy.
• When employee requests leave or employer learns employee’s leave may be FMLA-qualifying, employer now must notify employee of FMLA eligibility within 5 business days (previously 2 days).
  • This is notice of general eligibility, not whether particular situation will be treated as FMLA leave.
  • This eligibility determination is based on factors such as hours worked during last 12 months, and whether employee is employed at covered worksite.
  • If employee is not eligible, notice must state at least one reason for this.
• Once employer has enough information to determine whether or not employee’s leave will be FMLA-protected, it must notify employee of this determination within 5 business days.
  • A form for communicating this information is available.
  • Retroactive designation of FMLA leave is permitted if employer fails to provide timely notice and delay does not cause employee harm or injury.
  • However, if there is harm or injury, employer may be liable for pay and benefits lost by reason of such failure, for other actual monetary losses caused, and for other appropriate relief, including employment, reinstatement, or promotion.

The last point modifies the FMLA regulations to conform with a 2002 Supreme Court decision, Ragsdale v. Wolverine World Wide Inc.

In that case, the Supreme Court struck down the prior regulations to the extent they could require additional leave beyond the twelve-week statutory entitlement due to an employer’s failure to promptly designate leave as FMLA-qualifying.

For example, under the prior regulations, if an employee was absent for an FMLA-qualifying reason for ten weeks, but the employer failed to properly designate it as such, the employer, discovering the mistake, could not retroactively count the ten weeks towards the employee’s FMLA 12-week entitlement, but could be required to allow up to an additional 12 weeks.

Now, in response to Ragsdale’s invalidation of that rule. under the new regulations an employee must prove specific harm or injury from an employer’s failure to promptly designate leave in order to establish a violation; additional leave time will not be automatically required.

FMLA Notice Changes Beneficial to Employees

• Employers most post a general FMLA notice even when they have no FMLA-eligible employees. A PDF of the poster is available for free from the Department of Labor.
• Upon hire, employers with any eligible employees must give employees a general notice explaining FMLA’s provisions and how to file complaints of violations, if information is not in an employee handbook. Forms are available for this purpose.
• Where significant portion of employees are not literate in English, employer must provide general notice in language in which they are literate.
• When employee requests FMLA leave or employer learns employee’s leave may qualify under FMLA, employer’s notice of eligibility must be accompanied by “Rights and Responsibilities” notice detailing specific expectations and obligations of employee and consequences of failure to meet them. New forms are available for this purpose.
• “Rights and Responsibilities” form must include notice of :
  • Fact leave may be designated and counted against annual FMLA leave entitlement if qualifying
  • Applicable 12-month period for FMLA entitlement (calendar year, rolling 12-month period, etc.)
  • Any obligation to provide medical certification or certification of qualifying military exigency
  • Right to substitute paid leave,whether employer will require substitution of paid leave, conditions related to any substitution, and employee’s entitlement to take unpaid FMLA leave if employee does not meet conditions for paid leave
  • Right to continued health coverage during leave and job restoration upon its completion.
  • Any requirement to make health premium payments, how to do so, consequences of failure to do so on timely basis, and liability for repayment of premiums paid by employer during leave if employee fails to return from leave
  • Status as “key employee” and potential consequence that restoration may be denied following FMLA leave, explaining conditions required for such denial.

Changes in Employee Notice Obligations Under New FMLA Regulations

The flip side of the employer’s requirements to provide notice of employee rights and FMLA leave designations is the employee’s obligation to notify the employer of the need for leave. Changes in the FMLA regulations in this respect are all beneficial to employers:

• The new FMLA regulations modify a provision that had been interpreted to allow some employees to notify employers of need for FMLA leave up to two full business days after absence, even if they could have provided notice sooner. Now employees must follow employer’s normal and customary absence call-in procedures, unless there are unusual circumstances.
• Employees must provide sufficient explanation of their reason for leave or absence to allow employer to determine whether leave qualifies under FMLA. Merely calling in sick is not sufficient to trigger employer’s FMLA obligations. If employee fails to explain reasons, leave may be denied. However, employee need not specifically refer to FMLA first time leave is requested for a particular FMLA-qualifying condition.

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