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New FMLA Notice Poster and Regulations Take Effect March 8, 2013: Are You Ready?

Volume 12, Issue 2
March 6, 2013

All employers covered by the Family Medical Leave Act ("FMLA") must display the new Department of Labor's (DOL) FMLA Notice Poster in conspicuous places where it can be readily seen by employees and applicants for employment by this Friday, March 8, 2013.  Electronic postings are also permitted to satisfy the posting requirement as long as they otherwise meet the requirements of the FMLA regulations.

Additionally, employers that meet their legal obligations to provide the same general notice of employee's FMLA rights and responsibilities in employee handbooks by inserting a copy of the FMLA Notice Poster behind their leave policies will want to make sure the expired FMLA Notice Poster is replaced with the new one by way of an employee handbook revision.  Preferably, any such employee handbook revisions should be issued and acknowledged by a written receipt of the same that is then maintained in each respective employee's personnel file.  This Friday is also the effective date of the revised FMLA regulations issued by the DOL last month that contain clarifications of general applicability to all types of FMLA leave, as well as new provisions mandated by the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act.  The key changes contained in the new FMLA regulations include:

  • Clarifying the rules applicable to all covered employers for calculating intermittent or reduced schedule FMLA leave, setting minimum increments of leave and determining when a physical impossibility exists precluding an employee from using intermittent leave or working a reduced schedule commencing or ending mid-way through a shift.
  • Modifying all covered employers' record keeping obligations to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA), which already requires employers to confidentially maintain records and documents relating to FMLA leave and medical histories created for FMLA purposes in separate files from the employers' usual personnel files.
  • Expansion of qualifying exigency leave to cover eligible employees with family members serving in the regular Armed Forces and the addition of a foreign deployment requirement for using such leave.
  • Increasing from five (5) days to up to a maximum of fifteen (15) days the length of time an eligible family member may take for qualifying exigency leave related to the rest and recuperation of a service member.
  • Creating a new qualifying exigency leave category for parental care so that an eligible employee can care for a military family member's parent.
  • Expanding the definition of "serious injury or illness" to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty.
  • Expanding military caregiver leave to care for covered veterans and adding definitions of who constitutes a covered veteran and what constitutes a serious injury or illness of a covered veteran.
  • Listing the authorized health care providers from whom an employee may obtain a certification of a service member's serious injury or illness.
  • Permitting an employer to request a second and third opinion for medical certifications obtained from a health care provider who is not affiliated with the Department of Defense (DOD), the Department of Veterans Affairs (VA), or the TRICARE network.

The DOL also updated its FMLA optional use forms (WH-380, WH-381, WH-382, WH-384, and WH-385) and created a new form for the certification of a serious injury or illness for a veteran ( WH-385-V). However, these new forms still do not contain the "safe harbor" language recommended by the Equal Employment Opportunity Commission to comply with GINA.  See "How Are You Getting Along With GINA?," KZA Employer Report (Mar. 14, 2011).  Clients who have questions concerning their obligations under the new FMLA regulations or would like assistance in modifying their FMLA policies and procedures should feel free to contact any of the attorneys at KZA for help.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.