As reported previously, the new Family and Medical Leave Act regulations took effect on January 16, 2009. The new regulations included reference to new required notices to employees and a new required workplace poster. The Department of Labor (“DOL”) included as appendices to the regulations suggested prototype notices, new suggested medical certification forms, and the text for the new poster. (See earlier blog post.)
Not surprisingly, employers are already experiencing some confusion about how to use these new notices. The following is a brief “step-by-step” approach.
THE NEW POSTER
This step is pretty simple. Obtain copies of the new required poster. They must be posted in “conspicuous” places where employees are likely to see them.
NOTICES TO EMPLOYEES
General Notice
In addition to the poster, employers are required to give a “General Notice” to employees and new hires about the FMLA. The General Notice can be included in your employee handbook or other written summary of employee benefits. Employers that do not have an employee handbook or other written summary of employee benefits must give the General Notice in a written form. Appendix C to the regulations, which contains essentially the same language as the poster, can be used as this General Notice. The General Notice can also be accomplished electronically by directing employees to a company intranet or website.
Important: The language of the poster and Appendix C includes information not typically included in existing company FMLA policies. Therefore, it is likely that most employers will have to revise their FMLA handbook policies in order to comply with the General Notice requirements of the regulations. If your handbook policy will have to be revised, you should consider issuing a supplemental written FMLA notice to employees for the period of time between now and whenever your handbook will next be republished.
Eligibility Notice/Rights and Responsibilities Notice
These notices are to be given to employees when they request FMLA leave for the first time during the 12-month period that you use for calculating FMLA eligibility. The Eligibility Notice lets the employee know whether they are or are not eligible for the FMLA leave requested. The Rights and Responsibilities Notice details the employee’s obligations and the employer’s policies concerning FMLA leave. The DOL has provided a prototype combined notice for the Eligibility and Rights and Responsibilities Notices. Give this notice to any employee seeking FMLA within five (5) business days of the request.
Designation Notice
The Designation Notice is to be given to employees after the company obtains sufficient information to determine whether the requested FMLA leave has been approved, such as after the employee submits the required medical certification. The Designation Notice has to be given within five (5) days after the company obtains information sufficient to determine whether the leave is FMLA-qualifying. The DOL has also issued an approved prototype Designation Notice.
Medical Certification Forms
The new regulations reference new approved medical certification forms, including separate forms for the serious health conditions of employees and those of family members. The forms are somewhat improved versions of the old suggested forms. The DOL medical certification forms are recommended examples only. They are not mandatory and employers are free to develop their own forms so long as they do not seek information beyond what is included in the DOL recommended forms. As a result, most employers use the DOL forms. Also, though employers are not required to insist on medical certification at all if they are convinced of the legitimacy of the need for the leave, it is wise for them to get medical certification in any event, if only to assure consistency in their FMLA program and procedures.
For your convenience, a complete set of the DOL prototype forms can be found at our earlier blog post.
