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On January 16, 2009, the Department of Labor's ("DOL") revised regulations updating and interpreting the Family Medical Leave Act ("FMLA") will take effect. These revised regulations change virtually all aspects of how an employer administers the FMLA.

The FMLA applies to employers with fifty (50) or more employees. Your clients who have fifty (50) or more employees should be made aware of these changes and should immediately review their FMLA policies and practices to assure they comply with these new regulations. Oregon's Family Medical Leave Act, which applies to employers with twenty-five (25) or more employees, is not immediately affected by these FMLA changes. However, BOLI is currently evaluating whether it needs to change its rules in response to the FMLA changes and will come out with it position shortly.

Military Leave/FMLA Changes

These new regulations accomplish two tasks. First, the rules implement the Military Family Leave provisions of the FMLA, which were enacted in 2008. This is potentially important now because Oregon's National Guard is expected to have significant deployment this year.

Two forms of military family leave are created:

• Military Caregiver Leave, which affords twenty-six (26) weeks of leave to a family member of a servicemember who suffered a serious illness or injury on active duty; and
• Qualifying Exigency Leave, which affords twelve (12) weeks of leave to family members of National Guard and reserve servicemembers who are called to active duty and allows leave to be taken because of short-notice deployment of the military member; military events and related activities; childcare and school activities; financial and legal arrangements; counseling, rest and recuperation; post-deployment activities, and other similar activities that can be agreed upon by the employer and employee.

Second, the amendments address numerous procedural, notice and timing requirements in the FMLA, including: guidance on the timing and number of treatments required for a "chronic condition" or "continuing treatment" to constitue a "serious health condition," new and different employer notice requirements; revised employee notice requirements; expanded rights and obligations for employers to seek clarification and certification of medical information; and clarification of how bonus pay, holiday pay and other benefits are affected.

Highlights of FMLA Changes

The changes to FMLA procedures are extensive and significant. The official record is more than 700 pages. A detailed review of all changes is beyond the scope of this memorandum. However, I have highlighted various areas that will likely impact an employer's current practices.

If you or your clients have particular questions about the regulations and how the client's practices are impacted, please let me know and I can provide more detailed information.

A.  Employer Notice Requirements.

Employer notice requirements have been consolidated, revised and expanded. An Employer has now three (rather than two) notice obligations, including:

1.  A New General Information Notice and Poster that must be Distributed and Displayed in the Workplace.

An employer must both post the new poster and also distribute the general notice to employees. The general notice can be distributed by inclusion in an employee handbook or other policy guide if the employer has one, but if not, the notice must be given to all employees and to new employees at the time of hire. The DOL has prepared a standardized form "Notice to Employees of Rights under FMLA," a copy of which is attached hereto Family and Medical Leave Act (FMLA) poster.

2.  A New Notice of Eligibility and Rights and Responsibilities Form.

A new form of notice is required when responding to a request for FMLA leave. An employer must respond to a request for leave within five (5) business days (increased from two (2) business days) and, if leave is denied, give at least one reason why the employee is ineligible. At the same time as providing notice of eligibility, the employer must also provide the employee with a notice detailing the employee's rights and responsibilities while on FMLA leave. The DOL has prepared a standardized form (WH-381), which is attached hereto.

3.  A New Designation Notice Form.

When an employer determines that an employee's leave qualifies as FMLA leave the employer must within five (5) business days provide the employee with notice designating the leave as FMLA leave or telling the employee what additional information is needed before the employer can make that determination. A variety of other issues with regard to qualifying leave are covered in this notice. The DOL's standardized form (WH-382) is attached hereto.

Recommendations: All covered employers should post the new poster (available on DOL's website www.dol.gov/esa/whd/fmla/finalrule.htm) and review their handbooks or policy manuals to assure they comply with this notice requirement. Employers should also adopt standardized forms to use when informing employees if they are eligible for leave and designating leave as FMLA leave. Employers should also develop clear policies on what is required from an employee on leave and when returning to work, so such matters can be set forth in the "Rights and Responsibilities" portion of the notice.

B.  Retroactive Designation.

Previously, an employer could not retroactively designate leave as FMLA leave. An employer may now do so, unless the employee suffers harm or injury from the employer's failure to timely designate, in which case an employer may be liable for the employee's lost compensation or benefits.

Recommendation: If your client is inclined to retroactively designate leave as FMLA leave, the employer should carefully consider whether the employee could have made a different choice at the time leave was initiated and avoided some cost or consequences. If so, a retroactive designation should be done with caution.

C.  Employee's Notice Obligations.

An employee who has the need for leave must give notice "as soon as practicable." Previously, the standard was 1 to 2 days and this change is generally seen as increasing the burden on employees to let employer's know sooner. Employer's can require an employee to comply with employer's usual customary notice and procedures for requesting other forms of leave. In other words, the fact that leave is potentially FMLA leave does not excuse an employee from compliance with an employer's consistency applied procedures and practices.

Recommendation: Clients should review all of their leave practices and policies and adopt a common practice for all leave requests (e.g. in writing and directed to a specific office, such as human resources coordinator) to assure consistent administration. This will help the employer in complying with the various notice provisions and in complying with other aspects of the FMLA, such as the use of paid leave.

D.  Certification/Authentication/ Recertification.

The existing single medical certification form has been replaced with two medical certification forms. The first (WH-380E) relates to an employee's request for his or her own CFL's condition. The second (WH-380F) is used when employee seeks leave to care for a family member.

An employer may now obtain general contact information about an employee's healthcare provider and request certification of the need for intermittent leave or which essential job functions cannot be performed. (Note: An employee must be advised of these obligations in the designation notice).

If an employee's medical certification is incomplete or insufficient, the employer may advise the employee in writing and request additional information within seven (7) calendar days. A certification is insufficient if it is vague, ambiguous or nonresponsive. Also, an employer may now directly contact the employee's healthcare provider, but solely for the purposes of authenticating information that is provided. (Caution: Only specific people may contact an employee's healthcare provider, including an HR professional, a leave administrator or a management official. An employee's direct supervisor is expressly prohibited from making such contact).

An employee cannot be required to submit a fitness for duty certification at the time of reinstatement unless the employee was so advised in the designation notice.

Recommendation: Clients with sufficient staff should consider designation a "leave administrator" position within its HR or administrative staff. This would be the person to whom all requests for leave are given and who would coordinate the various medical certification, authentication and recertification practices. This person could also coordinate and monitor all leave and whether or not it counts as both Oregon and Federal family leave.

If your clients want to know what duties an employee cannot perform, or wants to require the employee be certified as fit for duty when returning from leave, the client must develop a detailed list of the essential job functions and set forth these requirements in the designation notice.

E.  Intermittent Leave and Light Duty Positions.

Employees who take intermittent leave must make a "reasonable effort" to schedule such leave so as to not unduly disrupt the employer's operation.

The time an employee voluntarily performs a "light duty" position rather than take FMLA leave will not count against the employee's FMLA entitlement. Furthermore, the employee's right to job reinstatement is held in abeyance while he or she fills the light duty position.

F.  Benefits/Holidays/Bonuses.

An employee is now entitled to substitute all forms of paid leave during the period of FMLA leave. Previously, the employee had a statutory right only to use "sick leave," although an employer could require or allow the use of other forms of leave. The employee must comply with the employer's standard policies and procedures relating to the use of such leave. However, the employer has an added burden and if an employee applies for an FMLA leave without designating the use of paid leave, the employer must inform the employee of any additional requirements necessary to be able to use the paid leave.

Whether or not a holiday counts against an employee's FMLA leave entitlement depends on if an employee takes a partial or full week of leave. If an employee takes less than a full week of leave, a holiday that falls within that same partial week cannot be counted against an employee's FMLA entitlement. Conversely, if the employee takes a full week, a holiday occurring within that week does count against FMLA entitlement.

During a period of FMLA leave an employee can be required to maintain its health insurance premiums. However, the employer has a duty to reinstate an employee's health insurance when the employee returns to work and the failure to do so may expose the employer to liability or harm suffered by the employee. As a practical matter, the employer may need to maintain the insurance.

If an employer has a bonus based attendance or production an employee on FMLA leave may be excluded from such benefits if employee's on other forms of leave are also excluded.

Recommendations: Employer's should review their existing FMLA policies to be sure they are consistent with the new rule on the use of paid leave and do not restrict the employee to using only sick leave. The policies should also clearly address how holidays, bonuses and other benefits, such as insurance, will be handled to employees on FMLA leave. A uniform approach to all forms of leave may be the easiest way to administer these policies.