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The Hire Learning
Occasional Thoughts on Employment Issues From
Menaker & Herrmann LLP
June 2009 |
Change was in popular demand in 2008. But 2009 is the year for implementating those changes. Before leaving office, the Bush Administration made significant changes to the Family Medical Leave Act of 1993 (“FMLA”), which allows employees of employers with more than 50 employees to take unpaid time off for certain family and medical conditions. Those changes took effect January 16, 2009.
Nine in 09: Just a few of the FMLA changes you should know about.
What’s in a Notice: Employer Notice Requirements
Employers must notify employees of their FMLA rights. There must be a posting and a written version given to employees in a manual or upon hiring. Now, employers have five business days instead of two to notify employees requesting FMLA leave regarding eligibility and rights and responsibilities.
Chance May Crown Me: Employee Notice Requirements
Employees have new, larger burdens when it comes to notifying an employer of their intention to take leave. Employers can delay or even deny FMLA leave if an employee fails to follow the employer’s “usual and customary” rules on notice and protocol for requesting leave (e.g., making a phone call instead of sending an email). Also, employees are required to give 30 days notice to employers for foreseeable absences. If the leave is not foreseeable, employees must let their employers know “as soon as practicable.”
The Serious Health Condition’s the Thing
A serious health condition, which can qualify an employee for FMLA leave, exists only if the employee is incapacitated for more than three days and has a) visited a healthcare provider at least twice for the condition within a 30 day period or alternatively, b) visited a healthcare provider and is following a course of treatment. Also, employees must see the doctor within seven days after becoming incapacitated. For chronic conditions, the employee must see the doctor at least twice a year.
The Numbers Game: Medical Certification
An employer who wants a medical certification from an employee must ask for it within 5 business days after receiving notice of the employee’s request for FMLA leave. The employee has 15 calendar days to deliver the certification. Employers may require healthcare providers to list essential functions the employee cannot perform and require fitness for duty certification. Failure to get proper certification may result in an employer denying an FMLA leave request.
Private Eyes: Medical Certification
Employers may now directly contact an employee’s doctors instead of going through their own healthcare provider to authenticate and clarify a medical certification. The Health Insurance Portability and Accountability Act (“HIPAA”) is implicated because employers are required to get a release from the employee; however if the employee fails to sign a release, an employer may deny FMLA leave.
A Long Farewell: Waiver of Rights
In an important clarification of FMLA, employees and potential employees cannot waive their FMLA rights or be induced by employers to waive or limit their FMLA rights, but they may waive past claims without the Department of Labor’s approval.
To Work or Not to Work: Intermittent Leave, Light Duty and Perfect Attendance
1) Employees are now required to make a “reasonable effort” to avoid creating disruptions in the workplace when scheduling planned medical treatments. 2) When an employee opts to perform light duty at work instead of taking leave, light duty work no longer counts against the employee’s FMLA days. 3) Employees who take FMLA leave are no longer eligible for perfect attendance awards and bonuses; employers must treat FMLA leaves the same as other equivalent employee absences.
FMLA and Fatigues
Employees with family members serving in the Reserve or National Guard can take unpaid leave for up to 12 weeks if the family member is called to active duty. Qualifying exigencies employees may take time for include childcare and school activities, counseling, rest and recuperation, short-notice-deployment and post-deployment activities.
Get Well Wounded Warriors
Employees are allowed to take 26 weeks of unpaid leave to care for family members injured in the line of duty. This is the only situation where the family member definition is broadened to include next of kin.
Nine in 09: Just a few of the FMLA changes you should know about.
What’s in a Notice: Employer Notice Requirements
Employers must notify employees of their FMLA rights. There must be a posting and a written version given to employees in a manual or upon hiring. Now, employers have five business days instead of two to notify employees requesting FMLA leave regarding eligibility and rights and responsibilities.
Chance May Crown Me: Employee Notice Requirements
Employees have new, larger burdens when it comes to notifying an employer of their intention to take leave. Employers can delay or even deny FMLA leave if an employee fails to follow the employer’s “usual and customary” rules on notice and protocol for requesting leave (e.g., making a phone call instead of sending an email). Also, employees are required to give 30 days notice to employers for foreseeable absences. If the leave is not foreseeable, employees must let their employers know “as soon as practicable.”
The Serious Health Condition’s the Thing
A serious health condition, which can qualify an employee for FMLA leave, exists only if the employee is incapacitated for more than three days and has a) visited a healthcare provider at least twice for the condition within a 30 day period or alternatively, b) visited a healthcare provider and is following a course of treatment. Also, employees must see the doctor within seven days after becoming incapacitated. For chronic conditions, the employee must see the doctor at least twice a year.
The Numbers Game: Medical Certification
An employer who wants a medical certification from an employee must ask for it within 5 business days after receiving notice of the employee’s request for FMLA leave. The employee has 15 calendar days to deliver the certification. Employers may require healthcare providers to list essential functions the employee cannot perform and require fitness for duty certification. Failure to get proper certification may result in an employer denying an FMLA leave request.
Private Eyes: Medical Certification
Employers may now directly contact an employee’s doctors instead of going through their own healthcare provider to authenticate and clarify a medical certification. The Health Insurance Portability and Accountability Act (“HIPAA”) is implicated because employers are required to get a release from the employee; however if the employee fails to sign a release, an employer may deny FMLA leave.
A Long Farewell: Waiver of Rights
In an important clarification of FMLA, employees and potential employees cannot waive their FMLA rights or be induced by employers to waive or limit their FMLA rights, but they may waive past claims without the Department of Labor’s approval.
To Work or Not to Work: Intermittent Leave, Light Duty and Perfect Attendance
1) Employees are now required to make a “reasonable effort” to avoid creating disruptions in the workplace when scheduling planned medical treatments. 2) When an employee opts to perform light duty at work instead of taking leave, light duty work no longer counts against the employee’s FMLA days. 3) Employees who take FMLA leave are no longer eligible for perfect attendance awards and bonuses; employers must treat FMLA leaves the same as other equivalent employee absences.
FMLA and Fatigues
Employees with family members serving in the Reserve or National Guard can take unpaid leave for up to 12 weeks if the family member is called to active duty. Qualifying exigencies employees may take time for include childcare and school activities, counseling, rest and recuperation, short-notice-deployment and post-deployment activities.
Get Well Wounded Warriors
Employees are allowed to take 26 weeks of unpaid leave to care for family members injured in the line of duty. This is the only situation where the family member definition is broadened to include next of kin.
If you need legal advice concerning an employment matter, please contact one of the attorneys from our Employment Law Group: Richard G. Menaker, Michiel A. Bloemsma, Cheryl L. Davis, Timothy P. Fisher, Rebecca Northey, Nicholas F. Gaffney, and Stephanie D. Fouts.
This Bulletin is for informational purposes only and does not constitute legal advice. Under the rules of some states, this Bulletin may be considered advertising.
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