December Newsletter

New FMLA Rules Boost Employee Admin Burden

Employee Benefit Advisor

November 19, 2008

Employers will have to make significant changes to their leave procedures under final FMLA regulations published November 17 by the Department of Labor.
The new rules, which span 201 pages in the Federal Register, are the first revisions to the Family Medical Leave Act since its passage in 1993. They take effect on Jan. 16, 2009.

"The DOL has changed all of the forms associated with FMLA leave, including the medical certification form and employer response form, which is now split into two forms -- notice and designation," explains Ellen E. McLaughlin, an attorney with Seyfarth Shaw. "This will increase the administrative burden on employers, but the stated reason for this change is to provide the employee with more detailed information as to his/her right and obligations under the Act."

When DOL proposed the new rules last February, it disappointed employers who were hoping for clarification and relief from administrative burdens. The final regulations are substantially similar to those proposed, with a few notable exceptions, says McLaughlin.

"Two of the most significant changes from the prior regulations involve what medical information the employer can get to verify an employee or eligible family member's serious health condition and how an employer can get this information. Overall, the final regulations are a win for employers in this area. Employers are now able to get more detailed information regarding an employee's or eligible family member's serious health condition, and it is easier to get this information, as the employer -- not the employer's health care provider per the old rules -- can make contact with the employee's health care provider."

Another significant change is the employee is now required to provide notice to the employer of his/her need for leave the same day the employee knows of the need for leave or the next day. Under the old rules, employees were able to delay giving the employer notice of the need for leave, resulting in an employer having staffing problems due to the lack of notification of an employee's absence from work, McLaughlin says.

The final regulations also address new military family leave entitlements included in amendments to the FMLA enacted as part of the National Defense Authorization Act.