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Archives
2009 Issue 1
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Significant Changes to the Family & Medical Leave Act Take Effect Significant Changes to the Family & Medical Leave Act Take Effect The Department of Labor recently published final rules under the Family & Medical Leave Act ("FMLA"). These rules, effective January 16, 2009, implement legislation passed as a provision of the National Defense Authorization Act of 2008, which amends the FMLA to require covered employers to give certain kinds of leave to families of military service members. The rules also make other changes in FMLA implementation, including modifications to the notice requirements for both employers and employees and to the medical certification process. Employers who have employees eligible for federal FMLA leave (for private employers, those with 50 or more employees working within a 75 mile radius) need to update their policies and administrative procedures to make sure they are in compliance with the new regulations. Military Family Leave The amended FMLA created two new categories of leave pertaining to military service members. First, effective January a year ago, certain family members may take up to 26 weeks of "caregiver leave" in a single 12-month period in order to care for a covered service member who has sustained a serious illness or injury while on active duty. A "covered service member" is a current member of the Armed Services (including the National Guard and Reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness. This provision applies to a parent, spouse, child, or next of kin who will care for the injured service member. The inclusion of "next of kin," or nearest blood relative, to the list of qualifying family members under the FMLA for this type of leave is an expansion of the old law, as is the extension of job-protected leave beyond the standard 12 weeks. Second, now that the final rules are effective on January 16, 2009, close family members of military personnel may take up to 12 weeks of "qualifying exigency leave" when those service members are activated for military duty or are notified of an impending call to duty and a "qualifying exigency" arises in relation to the family member's active duty. Unlike caregiver leave, however, qualifying exigency leave is available only to relatives of a member of the National Guard or Reserves. In the final rules, the Department of Labor defines "qualifying exigency" by providing broad categories of activities for which this type of leave can be used, including the following:
The Department of Labor has created two new certification forms for use by employers to help process requests for these new categories of leave - WH 384 and WH 385. Notice Requirements The final rules have also made significant changes to the notice requirements imposed on both employers and employees under the FMLA. For employers, once-separate notice requirements under each provision of the FMLA have now been consolidated into a single section of the regulations, obligating employers to provide their employees with the following:
An employer must also inform an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA qualifying reason. However, to comply with controlling court decisions, the regulations now allow an employer to retroactively designate leave as FMLA leave even if the employer has initially failed to timely notify the employee, provided that the failure to timely notify does not cause harm or injury to the employee. If the employer will require the employee to present a fitness-for-duty certification to be restored to employment, notice of such requirement must be included in the designation notice. The Department of Labor has created forms of each of the required notices that can be used by employers to meet their obligations under the new rules - WH 381 (Eligibility and Rights and Responsibilities Notice) and WH 382 (Designation Notice). Under the revised regulations, employees are now subject to more stringent notice requirements when taking leave. As before, the final rules require that employees provide their employer 30 days advance notice of the need for FMLA leave if it is foreseeable and as much notice as practicable if 30 days notice is not possible. Under the old law, if the need for leave was unforeseeable, employees were allowed to provide notice of the need for FMLA leave to an employer up to two business days after the absence, regardless of whether they could have done so sooner. Under such circumstances now, employees must follow their employer's usual and customary procedures for reporting an absence - for example, many organizations require employees to call in or otherwise notify the employer of an absence on the same or next business day - unless there are unusual circumstances that preclude the employee from doing so. These new requirements are a response to employers' complaints about the disruptive effects that the lack of advance notice for unscheduled absences have had on workplaces. Certification Requirements Under the regulations, an employer should request certifications that are required to verify the need for leave within five business days of the time that the employee gives notice of the need for leave or, in the case of unforeseen leave, within five business days after the leave starts. Later certifications may be requested if the employer has reason to question the appropriateness or duration of the leave. Employees must generally be given at least 15 calendar days to supply the certification. Employers must notify employees in writing if certifications are incomplete or insufficient and give employees at least seven calendar days to cure the deficiency. The regulations clarify that employers - through use of a health care provider, human resources professional, leave administrator, or a management official, but not through the employee's direct supervisor - may contact an employee's health care provider for authentication or clarification of a medical certification, assuming that the employee authorizes his/her health care provider to provide the needed disclosure. If an employee refuses to provide such authorization and does not otherwise provide a complete certification, FMLA leave may be denied. Employers may not ask for information beyond that required by the certification form. Employers may require employees taking FMLA leave for their own serious health condition to submit a fitness-for-duty certification prior to return to work, provided this requirement is part of a uniformly-applied policy applicable to all similarly situated employees. If the certification needs to address an employee's ability to perform essential job functions, the designation notice should so indicate. The Department of Labor has revised the certification forms available for use by employers. WH 380-E is available for use for the employee's serious health condition, and WH 380-F is available for use for a family member's serious health condition. More information, including fact sheets, notices, the revised FMLA poster, and new certification forms, can be found on the website of the Department of Labor's Wage & Hour Division. Harmon Curran will continue to track new developments in this area and we would be happy to assist you with any questions that you may have. By Christine Tschiderer  New DC License Requirement The District of Columbia has instituted a new licensing requirement that will affect many nonprofit organizations. Previously, only businesses engaging in specially regulated activities were required to obtain a Basic Business License ("BBL"). For nonprofits, this usually only applied to those conducting charitable solicitations in the District. Under the new rules, any organization that does business in DC and that was not previously required to get a BBL must also obtain a BBL with a "General Business License" endorsement. The District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") has created the BBL EZ-FORM for use by registrants that require only the general business license and not any other category of license. If your organization has a DC tax ID number and does not already have a BBL, you will have to file this form and pay the associated fees. The DCRA has established rolling deadlines for this new program, and the first deadline was December 31, 2008. Deadlines for DC corporations are set by zip code, while the deadlines for all "foreign" (non-DC) corporations, including nonprofits, are set by the state of incorporation. Corporations that do not submit an application by their assigned deadline will incur a $2,000 penalty. A complete list of deadlines can be found by clicking on the links below: More information about this program and the BBL EZ-FORM can be found on the DCRA website. If you need help handling these filings, please feel free to contact us here at Harmon Curran. By Rachel Jacobs This publication is designed to provide accurate and authoritative information about the subject matter covered. It is not distributed with the intent to render legal, accounting, or other professional advice. The services of a competent professional should be sought if legal advice or other expert assistance is required. Newsletter Home | HarmonCurran Home | |