Scurrying to get ready for F-Day? All the new FMLA changes are effective January 16. We’ve gathered some compliance tips from a nationally recognized expert, attorney Frank Alvarez.
Alvarez is national coordinator of law firm Jackson Lewis’s Disability, Leave & Health Management Practice Group. Here are his thoughts on some changes employers have hoped for.
Retroactive Designation of Leave
In the past, some courts had interpreted the FMLA such that if employers failed to formally designate leave as FMLA, it couldn’t be retroactively designated. The new regulation clears this up, says Alvarez. It permits retroactive notice if the employer fails to provide timely notice and the delay does not cause the employee harm or injury.
But, the new regs also bring increased liability for failure to provide timely and written notice of leave designation, says Alvarez.
The final regulations clarify that failure to provide required written notice can be considered “interference” with an employee’s FMLA rights. The regulations expand potential damages available for interference claims, including “any other relief tailored to the harm suffered,” says Alvarez.
The regulations provide an example: An employer was put on notice that an employee needed FMLA leave, and the employer failed to designate the leave properly as FMLA. The employee’s own serious health condition prevented him from returning to work during that time period. The employee will likely not be able to show that he or she suffered harm as a result of the employer’s failure to designate.
However, if an employee took leave to provide care for her son or daughter with a serious health condition believing it would not count toward her FMLA entitlement because it had not been so designated by the employer, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer’s failure to designate properly.
The employee might establish this, Alvarez says, by showing that he or she would have arranged for an alternative caregiver for the seriously ill son or daughter if the leave had been designated timely.
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New Forms and New Information
The DOL has updated the optional forms it offers to employers and has developed new forms to implement the Military Family Leave Amendments, Alvarez notes. The new forms include:
- WH-380-E New Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F New Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH Publication 1420 Notice to Employee of Rights Under FMLA
- WH-381 Notice of Eligibility and Rights and Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency for Military Family Leave
- WH-385 Certification of Serious Injury or Illness of Covered Servicemember for Military Family Leave
Recognizing that employers could benefit from having greater insight into the reasons why an employee could not perform essential job functions, DOL has created a new medical certification form for use in evaluating the medical need for leave prompted by the employee’s own serious health condition, says Alvarez.
In addition, there is a separate medical certification form for use when employees request leave to care for a family member with a serious health condition. This form seeks information on the type of care being provided by employees, Alvarez says.
The forms may be found at http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763.
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Additional Medical Information May Be Used
Finally, employers are now allowed to consider additional medical information that they obtain through ADA, paid leave, or workers’ compensation procedures.
The new regulations recognize that an employee’s serious health condition may also be a disability within the meaning of the ADA and may trigger requests for paid leave or workers’ compensation benefits. In a major shift from the limited medical inquiries permitted by the previous regulations, employers may now follow procedures for requesting medical information under the ADA or paid leave or workers’ compensation programs without violating the FMLA.
Moreover, Alvarez states, employers may consider any information received pursuant to such procedures or benefit programs in determining an employee’s entitlement to FMLA-protected leave.
In tomorrow’s Advisor, more tips from Alvarez, and a chance to evaluate BLR’s hot-off-the-press FMLA guidebook.