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Are Your Policies Compliant with New FMLA Regulations?

by Mike Maslanka

The Family and Medical Leave Act (FMLA) has been revised, and the regulations went into effect in January 2009. Time for a checkup of your company’s policies. Employers need to ask themselves the following questions:

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including hiring

1. Have I revised the eligibility portion of my policy? Recall that under the FMLA, an eligible employee must have 12 months of service. The revised regulations provide that the 12 months need not be continuous. So an employee who works for employers, takes time off (either to raise a family, go to school, or for whatever reason), and then returns to work must be given credit for his previous service. Make sure that your policy reflects this change.

2. Do you define “child” in your policy? Give some thought to this one. It’s not so much that it’s required, but employers want to make sure that employees reading the policy have an understanding of not only what is covered but also what is not covered. That way, employees won’t get any ideas about rights they think they have that they don’t. It will also spare employers the administrative headache of having to explain to employees why they can’t take FMLA leave simply because their teenage daughter twisted her ankle and is on crutches. The FMLA regulations define a “child” as someone who is (1) under the age of 18 or (2) older but incapable of self-care because of a physical or mental disability. It’s the disability part that’s important; otherwise, every twisted ankle gets FMLA coverage.

3. Are your military provisions shipshape? Remember that the FMLA now requires certain leave rights associated with employees who have family members in the military (i.e., service member family leave requests and qualifying military exigency leave requests). Under the first, eligible employees get a total of up to 26 weeks of leave in a single 12-month period. That’s an exception to the normal 12 weeks of leave (which can be taken for any reason, whether it be for an employee’s own serious health condition, the serious health condition of a child, military exigency leave, or the like).

If your FMLA leave policy contains a “proof of leave” section, it should be revised to reflect that service member family leave requests and qualifying military exigency leave requests must be accompanied by documents from the U.S. Department of Defense. Your policy should spell this out. Employers have the right to require proof (e.g., an appointment confirmation or copy of a bill) that an employee is taking exigency leave for the purpose for which it is requested.

4. Have you spruced up your policy to reflect the new regulations giving employers greater rights with intermittent leave? I know that intermittent FMLA leave is a headache. The new FMLA regulations recognize that, and you should bake these new rights into your policy. Under the new FMLA regs, there is greater emphasis on the employee’s obligation to schedule treatment so that it doesn’t unduly disrupt your company’s operations. So why not go ahead and say that? “It is your obligation in scheduling appointments and/or treatment to do so without disrupting the company’s operations.”

Further, provide in your policy that intermittent leave or leave on a reduced schedule — don’t forget that — must be “medically necessary” as the result of a serious health condition or a serious injury or illness. Recall, though, that the same is not required for qualifying military exigency leave.

5. Does your policy reflect consequences for failing to give 30 days’ notice of the need for foreseeable leave ( e.g., leave for an expected birth or planned medical treatment)? The new FMLA regs are really good on this point. Tell employees in the policy: “Failure to give proper notice of the need for family or medical leave may result in delay of the commencement of the leave.” Always speak to others in a language they can understand.

6. Is your leave policy user-friendly? Make sure your FMLA policy (and all policies, for that matter) is like a bullet: short, fast, and to the point. The purpose isn’t to overwhelm employees with information or to plan for every contingency. It’s to give them what they need to know to take advantage of their rights and to emphasize what your rights are. Try doing it chronologically: availability of leave (what you can take leave for and for how long), eligibility for leave, the requirements of giving notice of the need for leave, providing evidence of the need for leave, paying benefits during leave, and returning from leave. Use headings, check marks, and bullet points. Clarity is what counts.

    FMLA Compliance Manual