Ralph Peterson

Beggs & Lane
Pensacola, Florida
www.BeggsLane.com
RAP@BeggsLane.com
(850) 432-2451

Ralph Peterson is a partner with Beggs & Lane who represents employers in all in all aspects of labor and employment law, including EEOC, OFCCP, NLRB, and DOL Wage-Hour Administration claims. He also advises employers in all aspects of management-union relations, as well as reviews and prepares employment policies and procedures, employee handbooks, employment contracts, arbitration agreements, non-compete agreements and trade secret agreements, and affirmative action plans for U. S. Government contractors.

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The long-awaited revised and updated final rules of the U.S. Department of Labor interpreting the FMLA will go into effect on Jan.16 (unless Congress disapproves the regulations, which is unlikely). The regulations are an impressive clarification for employers and workers about their respective rights, responsibilities and obligations under the FMLA.

HR specialists should read the new regulations and then review them with an employment attorney. Along with revising existing company policies, they should promptly develop special training on new rules and procedures for supervisors and employees alike.

For full details on the FMLA revisions, including a link to the regulations themselves, see www.theHRSpecialist.com/newFMLArules.

Here are some of the rule changes you need to pay attention to.

Employer notice

Employers are required to provide employees with a general notice of FMLA rights, an eligibility notice, a rights-and-responsibilities notice and a designation notice.

The rights-and-responsibilities notice should be one document for both posting and distribution. Electronic posting of this general notice is allowed if all employees and all applicants have access to the information. If an employer has no handbook, a general FMLA notice must be provided to new employees when hired.

The employer has five business days to respond to an employee’s request for leave. The employer may be liable if an employee suffers individual harm because the employer fails to follow the notification rules.

Appendixes B-H of the new rules contain updated and revised sample forms, including medical certification, general notice, exigent circumstances and covered service member family leave.

Employee notice

Employees still must give notice “as soon as practicable” in cases when the need for FMLA leave is foreseeable. The final rules clarify that this means “as soon as both possible and practicable, taking into account all the facts and circumstances of the individual case.”

The final rules highlight the consequences if an employee fails to satisfy notice and certification requirements:

• If an employee fails to respond to the employer’s inquiries to determine whether leave qualifies under the FMLA, the employee risks losing FMLA protection.
• Absent unusual circumstances, employees can be required to follow established call-in procedures. Failing to do so can result in delay or denial of leave under the FMLA.
• If an employee calls in and simply states that the employee or a family member is “sick” without providing more information, such notice is insufficient to invoke the employer’s obligations under the FMLA.

Medical certification

The final rules make clear that an employee’s medical certification is incomplete if one or more of the entries on a certification form have not been filled in. The same is true if the information provided is vague, ambiguous or nonresponsive.

FMLA leave can be denied if the employee does not correct those deficiencies within seven calendar days.

Note: A certification that is not returned to the employer is not considered incomplete or insufficient, but instead constitutes a failure to provide certification.

Clarification of medical info

The final rules spell out how employers may communicate with an employee’s health care provider on FMLA matters.
Communications between the employer and the employee’s health care provider for clarifying the medical certification must comply with the employee consent rules of the HIPAA. If such consent is not given, an employee’s rights are jeopardized if the information provided is thereby deemed incomplete or insufficient.

Employers (and their health care providers, HR staff, leave administrators or management officials—but not any direct supervisors) are now allowed to contact health care providers directly, but only to authenticate and clarify the medical certification. Employers may not request additional information beyond that included in the certification form.

Employees are required to authorize release of relevant information about the medical condition to second- or third-opinion providers to facilitate the second-opinion process.