Act Now To Take Advantage Of Recent Employer-Friendly FMLA Changes

Sunday, March 1, 2009 - 01:00

Effective January 16, 2009, the final regulations implementing the Family and Medical Leave Act of 1993 (FMLA) put in motion significant changes to the manner in which employers administer their FMLA policies, including the form and content of employer notice obligations.

The final regulations create four separate employer notice obligations: General Notice, Eligibility Notice, Rights and Responsibilities Notice and Designation Notice1as well as some employer-friendly changes. Revising your organization's FMLA and related policies is critical to ensuring that your organization takes advantage of these changes. This article focuses on the FMLA's General Notice requirements.

The new General Notice requirements involve two steps: a new poster and a revised policy.2

The New Prototype FMLA Poster . Effective January 16, 2009, covered employers must post the new Department of Labor (DOL) FMLA poster, available at www.dol.gov, in a conspicuous place available to both employees and applicants. It must be posted even if your organization does not have any FMLA eligible employees.3For instance, if your organization has eligible employees in one office but also maintains a smaller office where employees are not eligible, the new poster must still be prominently posted in all locations.

The final regulations permit electronic distribution of the new FMLA poster as long as all other requirements with respect to availability to employees and applicants are met. However, even if your organization electronically posts the new poster, this will only be sufficient if all employees and applicants have electronic access. Given that most employers do not permit applicants to utilize their intranet and not all employees have access to the intranet, employers will have to utilize several methods of distribution to meet the posting obligation (e.g., hardcopy and electronic posting).

Revised FMLA Policy . The General Notice obligations also require a covered employer with at least one eligible employee to provide the general notice to each employee.4Compliance with this step may include placement of the general notice in an employee handbook or in other written guidance concerning employee benefits or leave rights. If such written materials do not exist, an employer may distribute a copy of the general notice to each new employee upon hire.

The general notice may also be distributed electronically as long as it is accessible to all employees. In addition, if a significant portion of an employer's workforce is not literate in English, an employer must provide it in a language in which the employees are literate as well as make it available to sensory-impaired individuals.

To satisfy the second step of the General Notice requirements, employers can: (1) simply duplicate and distribute to all employees a copy of the DOL's new prototype poster or (2) prepare their own policy as long as it includes, at a minimum, all of the information found in the DOL's prototype poster. Some organizations may opt to simply duplicate the DOL's new prototype poster and place it in their employee handbook. While that would serve as technical compliance with the second step of the General Notice requirements, employers should keep in mind that the DOL's new prototype form poster is just that, a form, and it does not reflect the specific manner in which an individual employer administers its FMLA policy.

If your organization believes that a policy should educate employees of their rights and responsibilities, consider including additional clarification in your FMLA policy beyond the DOL's minimum requirements. Four areas to consider are:

1. Articulate Clear Call-Out Notice Procedures For All Employee Absences

In addition to increasing employer notice obligations, the final regulations emphasize that employees have an obligation to improve both the timing and content of the notice they provide to employers of their need for FMLA leave. For instance, absent unusual circumstances, an employer may require an employee to comply with its normal call-out procedures.5Employers should specifically identify these call-out procedures in their FMLA policy or, at a minimum, direct employees to their particular department for information on these procedures.

In addition, where an employee is seeking to take leave for an FMLA qualifying reason for which the employer has previously provided FMLA leave (such as in the case of a chronic condition necessitating intermittent leave), the employee must now either specifically reference the qualifying reason for the leave or state that he or she needs FMLA leave.6The final regulations go one step further by specifically advising employees that calling out "sick," without providing more information, will not trigger an employer's FMLA obligations. Employers should take advantage of these pro-employer statements and specifically include them in their FMLA policy.

2. Identify Paid Time Off Benefits That Run Concurrently With FMLA Leave

The DOL's new prototype poster includes a statement that employees may choose or an employer may require an employee to use accrued paid leave concurrently with FMLA leave. This can potentially reduce the overall time an employee may be away from work. If this will be required and is not merely an option for employees, stating so explicitly in the FMLA policy may serve as a deterrent to employees who envision taking unpaid FMLA leave and taking paid time off benefits later in the year.

An employer may also require employees to run concurrently with FMLA leave any period of time during which they are receiving disability insurance or workers' compensation payments.7While the DOL's new prototype poster fails to mention this requirement, employers should specifically state this requirement in their FMLA policies in order to counter a common misperception by employees that time they are away from work when they are "on disability" or "on workers' compensation" is distinct from FMLA leave.

3. Highlight FMLA Leave Impact On Bonus Eligibility And Compensation Increases

One of the most significant employer-friendly changes under the final regulations relates to the impact of FMLA leave on an employee's eligibility for a perfect attendance or other similar bonus.

Under the prior FMLA regulations, an employee generally could not be disqualified from a perfect attendance bonus based upon his or her FMLA-covered absence. This interpretation resulted in an inherent unfairness in perfect attendance bonus programs whereby individuals with significant absences under the FMLA would remain eligible for a perfect attendance award.

Under the final regulations, employers may deny (or prorate) a bonus based upon the achievement of a specific goal, such as hours worked or perfect attendance, where the employee has failed to meet the goal due to FMLA leave as long as employees on other equivalent leave are similarly treated.8The final regulations also provide that an employer may deny or prorate an employee's compensation increase based upon seniority or length of service or work performed and take into account absences under the FMLA and equivalent leave.

These employer-friendly changes are not stated in the DOL's prototype poster. Employers should revise their FMLA policies to alert employees to the impact their leave of absence may have on their future compensation.

However, revising the FMLA policy alone will not be enough. Employers will only be able to take advantage of these changes if their compensation and other bonus programs are, in fact, based upon seniority, work performed, length of service, perfect attendance, etc. Employers must review their current compensation and bonus programs and policies and revise them to take into account these new criteria.

4. Integrate FMLA Leave Obligations With State Leave Laws And Other Employer-Provided Leaves

State Leave . A number of states, including New Jersey and California, require covered employers to provide unpaid leave to eligible employees. These obligations are distinct from employers' obligations under the FMLA.

Employers that are required to offer eligible employees unpaid leave pursuant to state law should consider in advance the extent to which the federal FMLA and state leave law obligations will be coordinated. Although the FMLA does not eliminate an employer's obligation to comply with state leave laws, in many instances where an employee's need for leave qualifies under both the federal FMLA and state leave law, the time away from work may run concurrently, potentially reducing the overall leave obligations to an eligible employee.

In order to fully take advantage of the ability to concurrently designate an employee's absence under the FMLA and state leave law, employers should revise their policies to provide for the coordination of these leave obligations. This may reduce the possibility that an employee can later claim that the employee's absence was only designated as FMLA leave and that the employee remains eligible for an additional period of unpaid leave pursuant to state law.

Collective Bargaining Agreements . The DOL's new prototype poster also fails to discuss the manner in which FMLA leave runs concurrently with leave offered pursuant to a collective bargaining agreement (CBA). The extent to which a CBA addresses the interplay of FMLA and other employee leave rights varies greatly. Where a CBA specifically states the manner in which paid time off benefits and other forms of leave or seniority protections coordinate with FMLA leave, it may be sufficient for the employer's FMLA policy to simply cross reference the applicable sections of the FMLA. Where the CBA is silent on this issue, employers should be aware that the extent to which changes can be made to their FMLA policy and practice may be limited by a duty to bargain with the union regarding these changes.

Other Employer-Provided Leaves . An employer may offer other leaves of absence such as personal leave or medical leaves independent of the FMLA. To the extent any of these other leave categories will run concurrently with FMLA leave, the FMLA policy should be revised to state this.

Even where an employee has exhausted FMLA, state law leave and employer-provided leave, an employer may have an additional obligation to provide an unpaid leave of absence to a disabled employee as a reasonable accommodation under the Americans With Disabilities Act and/or state nondiscrimination laws.

The more employees understand their potential rights and obligations in advance of needing FMLA leave, the less likely they will be to later challenge decisions made by employers in implementing and interpreting their FMLA policy.

1 In next month's article, the author will discuss the content and timing of an employer's obligation to provide Eligibility Notice, Rights and Responsibilities Notice and Designation Notice.

2 29 C.F.R. § 825.300.

3 29 C.F.R. § 825.300 (a)(1).

4 29 C.F.R. § 825.300(a)(3).

5 29 C.F.R. § 825.302(d); 29 C.F.R. § 825.303(c).

6 29 C.F.R. § 825.302(c); 29 C.F.R. § 825.303(b).

7 Employers should be aware that when an employee is on FMLA leave and concurrently receiving disability or workers' compensation payments, an employer may not require an employee (although they may agree) to also run concurrently accrued paid time off benefits during that same period of time. 29 C.F.R. §825.207(d) and (e).

8 29 C.F.R. §825.215(c).

Linda B. Hollinshead is a Partner in WolfBlock's Employment Services Practice Group, where she focuses her practice on training and providing counseling to clients on medical and religious accommodations, leaves of absence, harassment and discrimination prevention and responding to harassment and discrimination claims.

Please email the author at lhollinshead@wolfblock.com with questions about this article.