Small Business: The Family And Medical Leave Act

March 28, 2009

By Philip I. Frankel, Small-Biz Focus, March/April 2009

This article first appeared in the March/April 2009 issue of Small-Biz Focus produced by Support Services Alliance, Inc. (SSA).

The Family and Medical Leave Act ("FMLA"), passed in 1993, requires that employers provide up to twelve weeks of unpaid leave in specified circumstances. On November 17, 2008, the Department of Labor ("DOL") issued revisions to the FMLA. These revisions are intended to clarify the rights and responsibilities of both employers and employees under the FMLA, as well as streamline the necessary communications between employers, employees, and health care providers. These are some of the highlights of the DOL's revised regulations, which took effect on January 16, 2009.

National Defense Authorization Act (NDAA)

Enacted in January 2008, the National Defense Authorization Act ("NDAA") amended the FMLA to provide two new leave entitlements for military family leave, including military caregiver leave and qualifying exigency leave. The military caregiver leave allows eligible employees who are family members (broadly revised to include next of kin¹) of covered service members to take up to 26 work weeks of leave in a single 12-month period to care for a service member with a serious illness or injury incurred in the line of duty. The qualifying exigency leave allows an eligible employee, who has a covered family member serving in the National Guard or the Reserves, to take up to twelve work weeks of FMLA-job protected leave for "any qualifying exigency"² that arises while the covered family member is on active duty or called to active duty status.

Under the FMLA, an eligible employee can obtain FMLA job-protected leave if they have a serious health condition. An employee can qualify as having a serious health condition either with inpatient care, or by receiving "continuing treatment." Continuing treatment can be established in several different ways. In its revised regulations, the DOL clarifies the various definitions for the term "serious health condition³."

Revised FMLA Regulations

The revised FMLA regulations also include revisions regarding the medical certification process. The revised regulations now account for the Health Insurance Portability and Accountability Act ("HIPPA") privacy rules and the effect HIPPA has had on employer communications with employee health care providers for FMLA purposes. The DOL has clarified that an employer's representative who contacts an employee's medical provider must either be a health care provider, a human resources professional, a leave administrator, or a management official. Additionally, under the revised regulations, employers will now have five business days, rather than three, to require an employee to submit a medical certification form to support his or her FMLA leave request.

Various notice requirements for employers and employees have been updated in the revised regulations. An employer now has five business days, rather than two, to respond to an employee's request for FMLA leave and/or designate an employee's request as FMLA leave. In addition, with respect to employees seeking FMLA leave, they must now provide sufficient information for the employer to determine whether the FMLA applies, including information on the medical condition or other qualifying reason for the absence. Furthermore, under the prior regulations, employees were required to give an employer notice for leave "as soon as practicable"; the revised FMLA rule has been clarified, and provides that the employee must "promptly" notify the employer. The revised regulations are comprehensive and contain many changes beyond those highlighted in this article. Yet, there are several practical steps that non-exempt employers should take to prepare their workplaces:

• (1) Review your current FMLA policy to see what changes and revisions need to be made to comply with the revised FMLA regulations;

   

  (2) Check your FMLA medical certification forms, postings, and the notice and rights/obligations forms that you provide to employees  these should be updated to reflect the new time periods that employees have to provide information; and

  (3) Check your Company's other existing paid leave policies to ensure that the eligibility requirements and notification procedures are clear.

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¹ The DOL has defined "next of kin" as the nearest blood relative. For an extensive list of qualifying family members, please refer to the revised FMLA regulations. 29 C.F.R. Part 825.124.

² Please refer to the revised FMLA regulations for what constitutes a "qualifying exigency." 29 C.F.R. Part 825.126.

³ Please refer to the revised FMLA regulations for clarifications to the term "serious health condition." 29 C.F.R. Part 825.113-115.