November 25, 2008 - The U.S. Department of Labor has released its final regulations covering the federal Family and Medical Leave Act. The regulations may be found on the DOL's website. The new rules substantially change the process for requesting and granting FMLA leave. Employers should take steps to update their policies and practices before the rules become effective in January 2009.

Serious Health Condition. Employers have long struggled over how to determine whether an employee qualifies for FMLA coverage. The new FMLA rules more clearly define how many doctor's visits are needed to qualify as a serious health condition.

Limited Communications with Health Care Providers. If an employer still has doubt about whether an employee qualifies for leave, the new rules address how the employer should communicate with the employee's health care provider. Importantly, the new rules bar the employee's direct supervisor from communicating directly with the employee's health care provider. However, the rules permit certain designated management representatives, including human resource professionals, to communicate directly with the health care provider, so long as privacy protections (including HIPAA) are met.

Military Family Leave. At long last, the rules address the FMLA's military leave provisions passed by Congress in January 2008. Under the Military Family Leave amendments, an eligible employee may take 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period. The rules broadly define "next of kin" for caregiver leave.

Exigency Leave. The rules also address what is meant by "qualifying exigency leave." The rules permit military family members to take exigency leave to participate with servicemembers in military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-deployment activities. The rules also provide a catch-all category for granting exigency leave for "additional activities," where the employer and employee mutually agree that the leave qualifies and both agree to the timing and duration of the leave. Given the breadth of the regulations, employers must immediately begin updating their FMLA policies and forms so that they are ready when the new rules go into effect on January 16, 2009.

Amendments to the ADA. In addition to getting ready for FMLA changes, employers must also prepare to comply with the recent amendments to the federal disability discrimination statute, the Americans with Disabilities Act (ADA). The ADA amendments become effective on January 1, 2009. The Washington Law Against Discrimination already provides broad protection to employees with disabilities under amendments adopted by the Washington Legislature in 2007. However, the new federal amendments provide even greater protections in some areas, particularly with regard to the accommodation process.

How Can Employers Minimize Exposure?

  • Update the handbook's FMLA policy to provide guidance to employees on the new military family leave for exigencies and caregivers
  • Train managers and supervisors about the new FMLA rules so that they properly refer questions involving disabilities or medical leave to Human Resources
  • Train managers and supervisors about the new disability discrimination laws to avoid claims for discrimination in hiring, firing, and accommodating employees' medical conditions
  • Ensure that Human Resources has training, tools and updated forms and to comply with the new laws when they become effective in January 2009

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