Effective January 16, 2009, the United States Department of Labor promulgated new regulations applicable to the Family and Medical Leave Act (“FMLA”). While the following contains only highlights of the recent rule changes, employers are well advised to make themselves aware of all modifications to the FMLA.
Perhaps the most significant changes to the FMLA relate to notice obligations. As the notification requirements have changed, employers must be aware that they must provide four different types of notice to employees. These notices include (i) general notice, (ii) eligibility notice, (iii) rights and responsibilities notice, and (iv) designation notice. If the employer’s work force is not literate in English, the notices must be translated into a language in which the work force is literate.
The general notice must provide a general statement of the FMLA’s provisions and must be placed in a prominent location, It should also be distributed in the employer’s handbook. The eligibility notice must notify the employee whether or not he or she is eligible for the FMLA within five (5) business days of the employee’s request for FMLA leave or from when the employer acquires knowledge that the employee’s leave may be covered under the FMLA. The notice should indicate whether the employee has been approved for FMLA and, if not, why the leave request has been denied. The Rights and Responsibilities Notice must advise the employee that the employer may designate and count the leave toward the employee’s FMLA entitlement. The notice is also required to provide additional information including whether the employee must substitute paid leave, and whether a certification will be required during the leave. Finally, the designation notice must be written and inform the employee whether the employer believes the employee is FMLA-qualifying.
Another major area in which the FMLA has been amended is with regard to military-related leave. Specifically, the National Defense Authorization Act extends FMLA leave to certain situations where employees need leave to care for an injured service member or due to a “qualified exigency in support of a contingency operation.” Eligible employees, including a “spouse, son, daughter, parent or next of kin of a covered service member” are eligible for leave of up to 26 work weeks in a single twelve month period to care for a injured service member. Leave can also be taken for a “qualifying exigency,” which includes situations in which an employee must address military-related issues such as short notice deployment, military events and related activities, urgent childcare and school activities, financial and legal tasks, counseling for the employee or a minor child, etc.