Garofalo, managing partner of the Hartford office of national employment law firm Jackson Lewis, delivered her remarks at a recent seminar sponsored by workforce management software supplier Kronos.
FMLA for Grandparents
So you're a "great company to work for" and you let employees take "Family and Medical Leave Act (FMLA) leave" to be with a sick grandparent. That's very good for morale, but guess what? That leave isn't FMLA, says Garofalo—grandparents aren't covered by federal FMLA. That employee will be entitled to 12 more weeks of real FMLA leave even after taking 12 weeks of "grandparent FMLA leave."
(Of course, employers can grant such leave if they choose to, but just don't try to call it FMLA, points out a BLR® expert.)
The New Regulations
All employers must now be in compliance with the new FMLA regulations that became effective January 16, 2009. Garofalo does not expect that the Department of Labor (DOL) will be too hard on employers for the next few months, but that means get going to update your policies and practices now, she says.
Garofalo characterizes the theme of the new reg as "shared responsibility." For example, there is more onus on employers to notify employees and more onus on employees to notify employers, she notes.
General Notice Obligations
Covered employers (generally, those with 50 or more employees) must post a general FMLA notice even when they have no FMLA-eligible employees. (This could happen, for example, if employees are spread out in distant locations.)
Each employee is entitled to general FMLA notice unless the employer publishes a handbook or other summary of leave rights. Garofalo recommends that this notice be given at the time of hire or published in a handbook distributed at that time.
Garofalo notes that posting requirements may be satisfied through electronic posting as long as every employee has access. If any employees don't have access, they would have to get a printed version.
If a "significant portion" (not defined by DOL) of employees are not English-speaking, translate the notice into their language. It's always to your advantage to do this, Garofalo says, so that no one can later say, "I didn't understand, I don't speak English."
Specific Notice Obligations
There are two new notice forms and requirements, Garofalo says. (Note to readers: Forms may be downloaded from http://www.dol.gov/esa/whd/fmla/finalrule.htm.)
1. DOL WH-381—Eligibility/Rights and Responsibilities Form. This form:
—Must be sent within 5 business days of when the employer receives notice that an absence might be FMLA
—Details specific expectations and obligations of employees, explaining the consequences of failing to meet the obligations
—Encloses the medical certification form, if appropriate
—Discusses rules for substitution of paid leave, benefits pay, and restoration rights
—Eliminates the need to provide a "preliminary" designation of FMLA leave
This form is only an "are you eligible" form, Garofalo notes. It is not based on serious health condition, etc., but simply on eligibility for leave.
2. DOL WH-382—Designation Form. This form confirms the employer's leave determinations and designated leave amount. The form is due to the employee 5 days after the employer receives satisfactory medical certification of the need for the leave.
This Is Your Only Chance
Garofalo points out that the preparation of this second form is a critical juncture in the process. Once you review the certification and approve the leave, it can't be undone.
Furthermore, if you fail to list the essential functions of the job on this form, you can't hold the employee to them when he or she submits a fitness-for-duty certification at the time of return to work. The doctor will just go by what the employee says the duties are.
In tomorrow's Advisor, we'll offer more of Garofalo's FMLA tips, plus introduce the newly updated resource that answers your FMLA compliance questions.
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