Wading through the New Family and Medical Leave Act Regulations

Ask Rita in HR [1] • April 12, 2009 • forward article

Email [2] print article

New year, new forms to fill out! Though we love that employees can have some flexibility when serious medical and family issues arise, administering the Family and Medical Leave Act (FMLA) [4] can be challenging. Mercifully, Ask Rita offers some guidance on the technicalities of recent changes to the law.

Dear Rita: Just when I thought I had my head wrapped around the intricacies of the leave and health benefit laws, they changed: the FMLA, ADA and COBRA regulations were all revised and rewritten this year. Of course, these revisions come at a time when we are in dire financial straits, facing layoffs, and certainly don't want the added risk of violating FMLA regulations. Can you outline the basic FMLA changes? -- Head is Spinning

Dear Spinning:

I understand your dilemma - even us labor law types are hitting the books to answer once-routine questions. The revisions to the Family and Medical Leave Act (FMLA) regulations consist of 750 pages of verbiage, but we'll try to address some of the main questions here. (For more about changes to COBRA, which governs health insurance coverage, see last month's Personal Finance update [5].)

Congress established the FMLA [6] six years ago to relieve the pressure on working families coping with illnesses, births and adoptions by granting many employees job protection and continuation of insurance benefits under certain conditions.

For nonprofit employers and employees, some changes involve the periods of time allotted for an employer to notify employees of their right to family and medical leave as well as for an employee to say that she wants to take leave. Restrictions on what medical information an employer may receive about a leave-taker's condition have been loosened; rules about the return to work tightened, and regulations governing leave to care for a wounded serviceperson or veteran changed. The new regulations also change the way the government determines if your nonprofit is covered by FMLA.

A summary of three areas should keep you on track:
1. FMLA eligibility
2. current notice requirements
3. medical certification forms

FMLA eligibility

The first questions to ask: Does the FMLA apply to my nonprofit? Is the employee in question eligible for FMLA leave?

If your nonprofit has 50 or more employees within a 75 mile radius, the FMLA applies to your organization. You count all "bodies" - full- and part-time. The regulations now clarify that you must also count employees who telecommute and workers from a temporary agency. If you have fewer than 50 employees, FMLA does not apply to your organization.

On the employee side of the equation, the employee must have worked for you for 12 months (over the past seven years) and worked at least 1,250 hours during the preceding 12-month period. If the employee has not worked for you for 12 months at the start of a medical leave, the 12-month clock keeps ticking during the time the employee is out on an approved leave. Once the 12-month mark is reached, you should designate the leave as FMLA starting at that point.

If your nonprofit is covered and your employee is eligible, then you must give the employee the proper notices.

Notices

There are two notices you must give the eligible employee: the eligibility notice [7] and the designation notice [8].

Eligibility Notice

The notice must inform the employee

of any requirement to provide medical certification
that any paid leave will run concurrently with FMLA leave
that the employee is entitled to return to the same or a similar position upon expiration of FMLA leave
how to continue insurance benefits

The former FMLA regulations left a gaping hole as to when an employee could use a paid benefit when on unpaid FMLA leave. The new regulations clarify the issue. An employee can choose to use a paid benefit such as paid time off (PTO) while out on FMLA leave. If the employee makes that choice, the employee cannot first take the PTO leave and then begin the FMLA leave; the PTO benefit will run concurrently with the FMLA leave. Likewise, an employee can choose to use a paid benefit to supplement a disability benefit. The employee and the nonprofit must put the coordination of benefits agreement in writing.

If you require medical certification, you should send the FMLA medical certification form along with the eligibility form. The eligibility notice must be given to the employee within five business days (instead of the two formerly required) of either the employee requesting FMLA leave or you learning that the employee's leave may be for an FMLA-qualifying reason.

A word of caution: Formerly, the FMLA allowed the doctor or other health care practitioner to certify only that the employee has a serious medical condition. The new FMLA regulations allow the employer to ask for the specific diagnosis. However, some state laws do not allow the employer to ascertain such specific information. For example, in California, the practitioner cannot disclose the diagnosis without the employee's permission. So, check your state law before using the U.S. Department of Labor FMLA certification forms which request specific medical information. (See the sample FMLA certification form we've included here.)

Designation Notice

Once you determine that the employee is eligible for FMLA leave, you must designate the leave as FMLA leave, in writing, within five business days. The new regulations allow you to retroactively designate leave as FMLA leave, provided the failure to make a timely designation does not cause harm or injury to the employee. The designation notice must let the employee know the specific work time that is designated as FMLA leave. The notice should also state whether a fitness-for-duty certificate will be required at the end of the leave.

The new regulations say that if a dispute arises about whether the leave qualifies as FMLA leave, you must sit down with the employee and attempt to resolve the difference in interpretation. The discussions and resulting decision must be documented.

Is your head still spinning??

Medical certification forms

Finally, the regulations clarify one of the most confusing aspects of the FMLA - medical certifications. You must request certification no later than five business days after the employee gives you notice of the need for FMLA leave, or, if the leave comes about because of an emergency, five days after the leave has commenced. (That fits into the 5-day time framework to give the eligibility notice.) Employees still have 15 calendar days to return the requested medical certification form, unless despite diligent and good faith efforts, the employee is unable to meet the 15-day deadline. (We've included a sample medical certification form here [9].)

An incomplete certification contains unanswered questions. An insufficient certification does not clearly set out that an employee has a serious medical condition. You should not deny FMLA leave before you work with employees to give them the opportunity to clarify their certifications. In doing so, you may now directly contact an employee's health care practitioner to authenticate or clarify a certification. The regulations specify who can contact the practitioner - human resources employees, leave administrators or management officials. The employee's direct supervisor may never contact the practitioner! And remember, if you disagree with the employee, you must sit down with the employee and attempt to resolve the issue.

A major change concerns the certification that an employee is ready to return to work. The former FMLA regulations allowed only a simple statement that the employee could work. The new regulations permit a much more meaningful certification. If you let the employee know in the designation notice that you require a fitness-for-duty certification upon return to work, the employee cannot return to the workplace without one. The notice should list the employee's essential job functions so that the health care practitioner can assess the employee's ability to return to work against those functions. You can only require a fitness-for-duty certification if you include the requirement in the designation notice.

Don't despair. Before you know it, you will know these rules by heart. And you can use our updated FMLA checklist [10] (just don't forget to check the rules of your state in case they differ from the federal regulations). If you have questions, check with one of us labor law types. Even our heads are spinning, but we're honing our research skills on this sweeping new law.

Pamela Fyfe and Ellen Aldridge are HR attorneys with the Nonprofit Insurance Alliance Group [11], daily assisting the thousands of nonprofits that are insured through the group with their HR questions. They write Blue Avocado's popular Ask Rita in HR [1] column.