Top Ten Developments in Employment Law for HR Professionals in Virginia — #6
Published by Eric A. Welter on January 11, 2010
The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order. Number 6: FMLA Final Regulations. More after the break. The final FMLA regulations became effective on January 16, 2009. The following is a summary of the changes implemented by the new regulations: a. Gaps in Service: The new […]
The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order. Number 6: FMLA Final Regulations. More after the break.
The final FMLA regulations became effective on January 16, 2009. The following is a summary of the changes implemented by the new regulations:
a. Gaps in Service: The new regulations state that although the required 12 month period of employment before an employee can be eligible for leave does not need to be consecutive, employment prior to a break of 7 years or more will not be counted (unless the break was due to National Guard or Reserve military service or the employer and employee had a written rehire agreement).
b. Definition of “Serious Health Condition”: The definition of “serious health condition” remains the same under the new regulations. However, the regulations provide further clarification in 3 areas:
i. For a serious health condition that involves more than 3 consecutive days of incapacity plus 2 visits to a health care provider, the 2 visits must occur within the 30 days following the beginning of the period of incapacity, with the first visit taking place within the 7 days following the beginning of incapacity.
ii. For a serious health condition involving more than 3 consecutive days of incapacity plus a regimen of continuing treatment, the first visit to the health care provider must occur within the 7 days following the beginning of incapacity.
iii. “Periodic visits” for chronic conditions are now defined as at least 2 visits to a health care provider per year.
c. Substitution of Paid Leave: The FMLA allows employees to take any type of paid leave (vacation, personal, family, medical, or sick leave) concurrently with their FMLA unpaid leave. The previous regulations had different procedures in place for the taking of vacation or personal leave as opposed to medical, sick, or family leave. The new regulations eliminate these distinctions and require an employee taking FMLA leave concurrently with paid leave to follow the same procedures that apply to other employees requesting that type of paid leave. An employer who requires an employee to take paid leave concurrently with FMLA leave must specify this on the designation notice.
d. Intermittent Leave: Employees must now make reasonable efforts to schedule intermittent leave so as not to unduly disrupt the employer’s operations.
e. Perfect Attendance Awards: An employer can deny perfect attendance awards to employees who do not have perfect attendance due to taking FMLA leave, so long as the employer treats employees who take non-FMLA leave in the same manner.
f. Employer Notice Obligations: Employers are required to provide employees with notice regarding:
i. General information about the FMLA through a poster or in electronic form. This information must also be included in an employee handbook or other written guidance, or distributed upon being hired. Also, where a significant portion of the workforce is not literate in English, the information must be provided in a language in which the employees are literate.
ii. FMLA eligibility information, employee rights and responsibilities with respect to FMLA leave, and designation of FMLA leave. Employers now have 5 business days instead of 2 within which to provide these notices after they become aware of an employee’s need for leave. The Department of Labor has issued a new WH-381 form which contains both the eligibility notice and rights and responsibilities notice. The form is available as Appendices C & D to the new regulations. The designation form is available as Appendix E.
g. Employer Penalties: The new regulations invalidate the categorical penalty provision for employers who fail to follow the proper notification procedures and instead states that an employee who can show harm as a result of the employer’s failure to provide a required notice could be entitled to monetary damages or equitable relief.
h. Employee Notice Prior to Leave: The regulations now require employees who become aware of the need to take leave less than 30 days in advance to notify their employer “as soon as practicable.” In contrast to the previous regulations, which allowed employees to give notice of leave up to 2 days after an absence in certain situations, the new regulations now require employees taking leave to follow their employer’s normal procedures for reporting absences.
i. Medical Certification: The changes to the medical certification provisions are as follows:
i. Employees may authorize the employer to contact their health provider directly, but the person who contacts the health care provider on behalf of the employer must be a human resource professional, leave administrator, health care provider, or management official, and may not be the employee’s direct supervisor.
ii. An employee does not have to allow the employer to contact his health care provider, but if he denies contact and refuses to clarify an incomplete certification, the employer is free to deny leave. The employer must give the employee 7 days to cure any deficiencies in the certification.
iii. Certification forms may now include information on symptoms, diagnoses, hospitalizations, prescriptions, or doctors visits regarding the medical condition for which leave was requested. However, this information is not required and it is up to the health care provider to determine what to include on the form.
iv. Employers are prohibited from asking the health care provider for more information than that required by the certification form.
v. For medical conditions lasting longer than 1 year, employers may request new medical certifications each leave year.
vi. An employer may request recertification for conditions of unlimited duration every 6 months in conjunction with an FMLA absence.
j. Fitness-For-Duty Certifications: Under the previous regulations, employers could require similarly-situated employees taking leave to certify that they are able to resume work. The new regulations allow employers to require employees to specifically certify that they are able to perform the essential functions of their job. However, the employer must give the employee a list of the job functions by the date of the designation notice, and the notice must also state that the employee is to address his ability to perform those functions in the certification. Further, employers may require certifications from employees returning to work from intermittent leave if there are reasonable safety concerns.
k. Light Duty: The regulations also state that the time spent on “light duty” work does not count against an employee’s leave entitlement. Further, an employee is not considered to be on leave while voluntarily performing light duty.
l. Waiver of Rights: Employees may voluntarily settle or release any FMLA claims without the Department of Labor’s approval or without court approval. However, prospective waivers of claims are not allowed.Topics: FMLA, HR