
	Employment Law Alert December, 2008

Labor and Employment Practice Group Leaders

Contributor

Thomas P. Brady

Practice Group

Members

James E. Baiers

Frederick W. Batten

Thomas P. Brady

Daniel J. Bretz

Jennifer S. Buckley

Connie M. Cessante

David M. Cessante

Stephanie J. Clifford

Paul W. Coughenour

Maria Fracassa Dwyer

Kristi R. Gauthier

John L. Gierak

Edward C. Hammond

David A. Hardesty

Thomas M.J. Hathaway

Ralph Houghton, Jr.

Tracy A. Leahy

Mark W. McInerney

Gregory W. Moore

William A. Moore

Rachelle G. Silberberg

Jeffrey A. Steele

Reginald M. Turner, Jr.

Anne-Marie Vercruysse Welch

NEW FMLA REGULATIONS
WHAT YOU NEED TO DO BEFORE JANUARY 16, 2009
BY: Thomas P. Brady

The new Family Medical Leave Act (FMLA) Regulations become effective on January 16, 2009. There are several steps covered employers should take before that date to insure compliance with the new regulations. Employers with 50 or more employees are covered by the FMLA, and should take the following actions before January 16, 2009:

· New Poster. Companies must post the new "Notice to Employees of Rights Under FMLA", WH Publication 1420[1] , in each of their facilities even if the employees in a facility would not qualify for FMLA leave. The Notice must be posted prominently where it can be read by employees and applicants for employment. The Wage and Hour Division of the Department of Labor can fine an employer $110 for each separate offense. The regulation does not define "separate offense," but like some FLSA violations, each day the Notice is not posted could be considered a separate violation.

· Revise Employee Handbooks. The employer must provide the information contained in the Notice to Employees of Rights Under FMLA to each of its employees by including it in the company's employee handbook or other written guidance to employees concerning employee benefits or leave rights. Prior to January 16, 2008, companies should consider amending the FMLA policies contained in these handbooks or policies to incorporate the information contained in the Notice. If an employer does not have a written handbook or guidance, the employer can comply with this requirement by providing a copy of the Notice to each newly employed employee. The regulations do not require employers who do not have a handbook or policy regarding benefits and leaves to provide the Notice to current employees. If a significant portion of an employer's workforce is comprised of workers who are not literate in English, the employer must provide the Notice in a language in which the employees are literate.

Employers should also ensure that they provide employees who may qualify for or take FMLA leave the following notices beginning January 16, 2009:

· Notice of Eligibility and Rights & Responsibilities. When an employee requests FMLA leave or the employer acquires knowledge that an employee's leave may be for an FMLA qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances. Notice of eligibility may be provided to the employee in writing or orally. The employer may use the Notice of Eligibility and Rights & Responsibilities, Form WH-381, to provide the notice of eligibility.

Employers are also required to provide written notice both detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The employer may use the Notice of Eligibility and Rights & Responsibilities, Form WH-381, to provide this notice. If the employer drafts its own notice, it must contain the following information if appropriate:

o That the leave may be designated and counted against the employee's annual FMLA leave entitlement and the applicable 12-month period for FMLA entitlement.

o Any requirement that the employee provide certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to provide the certification.

o The right of the employee to substitute paid leave; whether the employer will require the substitution of paid leave; any conditions related to any substitution; and the employee's right to take unpaid FMLA leave if the employee does not meet the conditions for paid leave.

o Any requirement for the employee to make premium payments to maintain health benefits; the arrangement for making the payments; and the consequences for failing to make the payments.

o The employee's status as a "key employee" and the potential consequence that the employer may deny restoration to the employee's former position following the FMLA leave.

o The employee's right to maintain benefits during FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave.

o The employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return from the FMLA leave.

o The employer may also include other information in this notice. For example, the employer can notify the employee that periodic reports of the employee's status are required.

· Designation Notice to Employee of FMLA Leave. When the employer has enough information to determine whether the leave is being taken for a FMLA qualifying reason, the employer must notify the employee whether the leave will be designated and will count as FMLA leave. The employer may use the Designation Notice to Employee of FMLA Leave, Form WH-382, for this purpose. If the employer requires the substitution of paid leave for unpaid leave, the employer must inform the employee. Unless contained in the company's employee handbook, the employer must also notify the employee if the employer will require a fitness-for-duty certification and provide the employee with a list of essential job functions. If the return-to-work certification requirement is contained in the employee handbook, the employer must orally inform the employee of this requirement at the time it provides the designation notice. The designation notice must be provided to the employee within five business days absent extenuating circumstances.

If the information provided by the employer to the employee in the notice changes, the employer, within five business days of receipt of the employee's first notice of need for leave subsequent to any change, must provide the employee written notice of the change. For example, if the employee exhausts his FMLA leave entitlement and request additional leave, the employer must notify the employee that the additional leave will not be designated as FMLA leave within five business days of the employee's request for additional leave.

· The employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement. If the amount of leave needed is known at the time the leave is designated, the employer must notify the employee the number of hours, days or weeks that will be counted against the employee's entitlement. If the amount of leave needed is not known at the time the designation notice is sent, the employer must provide notice to the employee upon the employee's request, but no more often than once in a 30 day period and only if the leave was taken in that period. This notice may be given orally or in writing, but if given orally, the employer must confirm this notice in writing by the next payday in most cases.

A failure to provide any of these notices may constitute an interference with, restrain, or denial of the exercise of an employee's FMLA rights. An employer may be liable for compensation and benefits lost because the employer failed to give the notices.

There are also new forms for Certification of Health Care Provider for Employee's Serious Health Condition (Family Medical Leave Act, Form WH 380-E); Certification of Health Care Provider for Family Member's Serious Health Condition (Family Medical Leave Act, Form WH 380-F); Certification of Qualifying Exigency for Military Family Leave (Family Medical Leave Act, WH Form 384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (Family Medical Leave Act, Form WH 385). Companies should begin using these forms on January 16, 2008.

[1] All of the posters and forms referred to in this Alert will be posted on the Department of Labor website. If you cannot find the appropriate form, feel free to contact your Clark Hill attorney for assistance.

To learn more about the new FMLA regulations, please attend our free February 14, 2009 Webinar which will be posted later in January. You may sign up for any of Clark Hill's Webinars on the Clark Hill web site. If you have any questions about the notices or requirements of the new FMLA regulations, please contact one of Clark Hill's Labor and Employment Group Attorneys listed in this E-Alert.

To find out more about Clark Hill and our Labor and Employment Practice Group, visit clarkhill.com or call 800.949.3124

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