Changes in FMLA Regulations Are Here – Are You Ready?
In the previous installments of this series, we’ve told you about employer wins & losses and some of the wide range of issues covered under the Department of Labor’s updated Family and Medical Leave Act regulations.
If you felt a bit overwhelmed by these changes, you’re not alone. Luckily there are plenty of resources out there to help HR and other management professionals come into compliance and avoid hefty fines.
Does My Company Need to Change Our FMLA Procedures?
In a word, yes. The vast majority of FMLA regulations have been affected by the updates. You will need to:
- Review and revise all leave policies and practices.
- Create new policies on military leave.
- Conduct employee training.
BLR advises:
No matter how daunting that may sound, the changes to the Family and Medical Leave Act regulations are not something you can ignore. About 7 million employees take FMLA leave each year, and DOL has estimated that an additional 139,000 employees will now take family military leave each year. DOL estimates that the first year net financial impact on employees and employers will be $327.7 million, with annual recurring costs of $244.4 million—and the department is notoriously low in such estimates.
How Detailed Are the Updated FMLA Regulations?
As we explained in this post, the preamble comes to 556 pages, with the regulations themselves taking up just under 200 pages. This is what BLR advises you to do to be safe:
Use key terms carefully. When adding and revising policies be sure not to mix the key terms of family military leave such as next of kin, sons, daughters, and parents. Those definitions for family military leave differ from definitions for other types of FMLA leave.
Describe the conditions under which family military leave is available.
Incorporate into your policies the Family and Medical Leave Act regulations’ descriptions of what constitutes a “qualifying exigency” or the circumstances under which an employee is eligible for servicemember caregiver leave.
Describe required documentation for certification. The final regulations lay out detailed requirements for documentation and certification of the need for family military leave.
Review policies for other types of FMLA leave. The final FMLA regulations alter the rules for “regular” FMLA such as the employee’s or a family member’s serious health conditions, and the birth, adoption, or foster care placement of a child.
Check definitions. The new Family and Medical Leave Act regulations have changed definitions for what constitutes “continuing treatment” for a serious health condition (now a 30-day limit on the required two consecutive visits to a healthcare provider), and a 7-day limit (from the onset of incapacity) on the first visit to the provider. Note also that chronic health conditions require at least two doctor’s visits per year.
Check policy or process for obtaining a certification. If a certification is incomplete or insufficient, the final Family and Medical Leave Act regulations require the employer to give the employee written notice of the additional information needed and allow the employee 7 days to fix the deficiency. Also, while a manager or HR professional can contact an employee’s healthcare provider to clarify or authenticate a certification, the employee’s immediate supervisor may not. Fitness-for-duty certifications may address the specifics of any employee’s ability to perform the essential functions of the job.
Check policies against key changes in leave provisions. The new FMLA regulations also make changes to leave for adoption, the definitions related to an employee’s adult children, when an employee is “needed to care for” a family member, and the list of covered healthcare providers.
Check policies regarding substitution of paid leave for unpaid FMLA leave. The FMLA regulations now allow employers to apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave. Employers may choose to change their substitution rules accordingly. Be aware, however, that employers must notify employees of any additional requirements for the use of paid leave.
Check policies regarding bonus or other payments. Under the new regulations, employers are permitted to disqualify an employee from bonus or other payments based on the achievement of a specified goal such as hours worked, product sold, or perfect attendance, where the employee has not met the goal due to FMLA leave, as long as this is done in a nondiscriminatory manner.
Resources: Help with FMLA Compliance
Department of Labor: This site contains the complete text of the regulations, fact sheets, the new forms required under the updated regulations, and more. The only thing I wasn’t able to find, in fact, was whether or not there is a grace period for companies to be in compliance!
