A Vital New Year’s Resolution: Preparing Your Workplace for the New FMLA Regulations

Jeff Nowak
January 9, 2009 — 2,525 views  
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On November 17, 2008, the U.S. Department of Labor published its long-awaited final regulations interpreting the Family and Medical Leave Act. The new rules become effective in mere weeks – on January 16, 2009. Serving as the first substantial changes to the regulations since the FMLA became law 15 years ago, the new regulations will significantly impact the manner in which employers administer the FMLA. Although employers will be able to obtain more detailed and timely information from employees and their health care providers (and have access to additional weapons to combat FMLA leave abuse), employers also will take on a greater responsibility to notify employees of their rights under the Act. Indeed, the new rules create a much greater administrative burden on employers than ever before.

Because the new rules will require significant changes to FMLA leave policies and procedures, employers must review and revise their personnel policies (including their FMLA policy) and update FMLA forms before the new regulations become effective on January 16, 2009. Employers also are well-advised to train supervisors at all levels about their responsibilities under these new rules to help avoid costly liability.

We suggest that employers take the following practical steps (before January 19) to prepare their workplace for life under the new FMLA regulations. In a follow-up article next week, I will outline some additional, practical tips when drafting your revised FMLA policy and new FMLA forms so that they meet your operational and business needs. In the meantime, please feel free to forward your FMLA questions to me at 312.786.6164 or [email protected]

Practical steps to prepare for the new FMLA regulations:


  • Post updated FMLA poster: As of January 16, 2009, all employers covered by the FMLA must post a new FMLA poster in an area accessible to all employees and applicants. This poster may be accessed from the DOL’s website at http://www.dol.gov/esa/whd/fmla/finalrule.htm.

  • Revise your FMLA policy and any relevant personnel policies (and inform employees): Because of several new regulations and the new military family provisions under the Act, your current FMLA policy will become obsolete on January 16, 2009. Take this opportunity to review and revise your FMLA Policy as well as other personnel policies (e.g., call-in procedures, leave policies) so that you can administer FMLA leave efficiently and fully assert your rights in preventing FMLA fraud and misuse under the revised regulations.

  • Update Employee Handbook and FMLA forms: The regulations require all employers who maintain an employee handbook to publish their FMLA Policy within the handbook. As you prepare your revised FMLA Policy, also consider adapting FMLA forms to ensure you are obtaining all the information available to you pursuant to the new rules.
    Special note: The new rules require employers to use entirely new FLMA forms (e.g., medical certification forms, eligibility and designation forms, etc.) Unfortunately, the new DOL-suggested forms are not models of clarity, do not capture all of the information that employers are allowed to request under the new rules, and omit certain information that employers should include in their employee notices. Accordingly, we strongly recommend that employers work with their attorneys to create customized FMLA forms that comply with the new rules.

  • Analyze bonus programs/criteria: The new regulations allow employers to deny such bonuses as “perfect attendance” awards to employees who take FMLA leave. As a result of this change, it is advisable to determine whether your bonus programs should be changed.

  • Update job descriptions: Under the new rules, employers now may require the employee’s health care provider to identify in the medical certification form those “essential duties” the employee cannot perform. Similarly, employers also may require a health care provider to confirm in a fitness-for-duty certification that the employee can perform all essential job functions upon his/her return to work. Updating job descriptions will help promote an efficient and accurate certification process.

  • Audit compliance with new regulations: In the upcoming month, employers should proactively take steps to: 1) determine whether managers/supervisors are aware of their new obligations and understand their responsibilities; and 2) ensure new policies and forms are being implemented effectively and consistently.

  • Revise severance agreements: Under the new rules, employees may release past FMLA claims. Consider updating your model severance and settlement agreements to take advantage of this new regulation.

  • Train your employees: To avoid expensive litigation, employers should train supervisors to properly manage employees with medical conditions and requests for FMLA leave. There simply is no substitute for training your employees to understand their obligations before they are required to handle sensitive, real-life situations.

  • Look for new opportunities to assert your rights: The new regulations require “shared” responsibility between the employee and employer. In short, when employers properly notify employees of their rights and responsibilities under the FMLA, they will be able to effectively administer FMLA leave and implement policies and strategies to prevent FMLA abuse.

For a complete executive summary of the new FMLA regulations, please see http://www.franczek.com/news-publications-164.html.

Author: Jeff Nowak, a partner at Franczek Radelet & Rose in Chicago, Illinois, represents public and private sector management clients in all areas of labor and employment law. He regularly counsels clients and litigates matters relating to employment discrimination and traditional labor claims, harassment, wrongful discharge and breach of contract. He also has extensive experience dealing with the Family and Medical Leave Act and the Americans with Disabilities Act. His expertise includes counseling clients on compliance with FMLA regulations, conducting in-house FMLA audits and training, and successfully litigating FMLA and ADA lawsuits. Mr. Nowak serves on the Editorial Board of the Family and Medical Leave Handbook, a comprehensive and well-respected publication which addresses the complex requirements of the Family and Medical Leave Act.
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NOTE: This article is intended to provide a general overview of the steps employer should consider taking to prepare for the new FMLA regulations. It is not intended to be, and it should not be construed as, legal advice.

Jeff Nowak