Everything going smoothly with the new FMLA regs? They are now officially a few weeks old, but many HR managers fear the hassles are just beginning.
The Department of Labor (DOL) says the revisions were designed to clarify the requirements and to improve communication between employers and employees. To some extent, these goals may be met, but the changes and challenges are many.
Here are summaries of some of the significant revisions included in the final rules:
The FMLA’s Quirkiest Rule—Perfect Attendance Awards—Is Gone: Probably the most bizarre rule of the old FMLA was the one that allowed employees to miss 12 weeks of work and still get a perfect attendance award. The final rule changes how perfect attendance awards are treated to allow employers to deny awards to an employee who does not have perfect attendance because he or she took FMLA leave (but only if the employer treats employees taking non-FMLA leave in an identical way).
Intermittent Leave Now Requires “Reasonable Effort”: The new rule clarifies that employees who take intermittent FMLA leave have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to unduly disrupt the employer’s operations. (Under the old rule, they just had to “attempt.”) That’s good news. Here are some other changes regarding intermittent leave:
The rules clarify that temporary transfers are allowed for employees taking planned intermittent leave only. (The department declined to expand temporary transfers to unplanned, unscheduled, or unforeseeable intermittent leave.)
The final rule also clarifies that accounting for leave need not be in the smallest increments that the employer’s timekeeping system can handle, but rather in the smallest increments the employer uses to account for other types of leave, provided it is not greater than one hour.
And here’s one more tricky change—the new rules prohibit employers from charging employees for the period of time that they are working. So, for example, if an employee stops working 30 minutes before the end of shift, and you use hourly increments, the employee cannot be charged for one hour of leave.
FMLA changes—the #1 hassle of 2009. BLR’s compliance guide is ready to help now—go here for information or to order.
Serious Health Condition Definition Clarified: While the rule retains the six individual definitions of “serious health condition,” it adds guidance on some regulatory matters.
First, the rule clarifies that if an employee is taking leave based on more than three consecutive calendar days of incapacity plus two visits to a healthcare provider, the two visits must occur within 30 days of the period of incapacity. The first visit must occur within 7 days of onset of incapacity.
Second, it defines “periodic visits to a healthcare provider” for chronic serious health conditions as at least two visits to a healthcare provider per year.
Gaps in 12-Month Service Defined: The final rule doesn’t change the requirements for 12 months of employment and 1,250 hours of service in the 12-month period preceding the leave. The final rule also continues the standard that the 12 months of employment need not be consecutive. However, it adds that employment prior to a continuous break in service of 7 years or more need not be counted.
An avalanche of changes in the FMLA—Are you ready? Order BLR’s comprehensive guidebook, Family and Medical Leave Act Compliance Guide. Get more information.
Light Duty Isn’t Leave: Under the final rule, time spent in “light duty” work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is retained during the light-duty period, but only until the end of the 12-month period that the employer uses to calculate the FMLA leave.
In tomorrow’s Advisor, look for FMLA changes in medical information and fitness for duty, plus an introduction to the first fully updated FMLA guide.