The Department of Labor (DOL) says that many of the FMLA revisions were designed to clarify the requirements that the Act imposes on both employees and employers, and to improve communication between those groups. But the new rules are neither simple nor succinct: The preamble alone is 556 pages, and the final regulations are just under 200 pages.

No matter how daunting that may sound, the 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.

Ready or not, the new FMLA regulations take effect on January 16. Join us December 5 for a special audio conference and learn what you need to know—and do—to get ready. Find out more.

Over the next 2 days, we’ll highlight some key provisions in the new regulations, courtesy of our sister website, HR.BLR.com. We’ll also tell you about an audio conference that will help you understand what it all means—and what you need to do to be in compliance when the new rules take effect next month.

Employer Notice Requirements

One of the biggest changes for employers will be in the notice and certification provisions. 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.

• The new regulations contain a new general notice prototype. If an employer has no handbook or other written materials, it must provide the general notice to new employees upon being hired.
• Absent extenuating circumstances, the timeframe for an employer to respond to an employee's request for leave is extended from 2 business days to 5 business days of the employee's request for leave or of the employer acquiring knowledge that the leave may be FMLA-qualified.
• A list of essential job functions must be provided with the designation notice if the employer will require that the fitness-for duty certification address the employee's ability to perform the essential functions of the position.
• Only one designation notice is required for each FMLA qualifying reason per leave year, regardless of whether the leave is taken as a continuous block of leave or on an intermittent or reduced leave schedule basis.
• In situations in which the amount of leave to be taken is not known at the designation stage (e.g., when unforeseeable intermittent leave will be needed), the employer is to inform the employee of the number of hours counted against the FMLA leave entitlement only upon the employee’s request, and no more often than every 30 days if FMLA leave was taken during that period.
• The employer may notify the employee of the hours counted against the FMLA leave entitlement orally and follow up with written notification on a pay stub at the next payday (unless the next payday is in less than 1 week, in which case the notice must be no later than the subsequent payday).

Employer Failure to Provide Notice

The updated rule contains technical changes to be consistent with the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. In light of the Supreme Court's decision in Ragsdale, the department stated that an employee isn't automatically FMLA-eligible just because an employer fails to provide the required eligibility notices to employees or provides incorrect information. The rule clarifies that if an employee suffers individual harm because an employer fails to follow the notification rules, the employer may be liable.

The new changes to the FMLA comprise hundreds of pages. Get a practical, plain-English analysis at our December 5 audio conference. Find out more.

Employee Notice Requirements

If an employee gives less than 30 days’ notice for foreseeable leave, the employee must respond to any employer inquiry as to why it was not practicable to give 30 days’ notice. When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

Employees who take intermittent leave for planned medical treatment will now have an obligation to make a reasonable effort to schedule such treatment so as to not unduly disrupt the employer’s operations (current regulations say only that the employee has to “attempt” to do so).

Tomorrow we’ll look at some other important provisions of the new rule, and at an audio conference this Friday that will help you make sure you are ready for the January 16 effective date.