The revised regulations offer some clarification as well as imposing some revised procedural steps on employers. Among the revisions are:

• More fully defining the term “any qualifying exigency,” which covers the families of military service personnel. The leave is intended to help families of National Guard and military reserve members attend to the member’s needs when he or she is on active duty.
• Providing employers with the specific right to have an HR professional directly contact the employee’s health care provider for the purpose of clarifying a medical certification. This right does not extend to the employee’s direct supervisor, which may be difficult for employers who do not have a formal HR function or professional.
• Requiring employees to follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.
• Clarifying the definition of “serious health condition” to require that an employee prove that an impairment has caused three consecutive days of incapacity and two visits to a health care provider. The new revisions require the two visits to occur within 30 days of the beginning of the incapacity. This could create some situations where there is a retroactivity concern.
• Extending various notice requirements from employers to employees from two business days up to five business days.
• Providing that employers may insist on medical certification that communicates whether an employee is able to perform the essential functions of the work. This means that the employer may implement uniform rules requiring the employee to submit to a fitness-for-duty certification prior to returning from an FMLA leave.
• Treating all forms of paid leave the same, eliminating any distinction between paid vacation and sick leave. The revisions retain the employees’ rights to use accrued paid leave rather than unpaid FMLA leave when taking time off; however, an employee must comply with the employer’s policy of using paid leave. (This may argue for an employer mandating use of any paid time, and could suggest that a PTO approach might be more advantageous. HR Answers has material available to help you create this policy.)

The effect of these final FMLA regulations requires that employers review their current FMLA policies and practices prior to January 16, 2009. Coupled with the ADA amendments going into effect on January 1, 2009, it is clear that covered employers will need to not only review policies and practices, but also educate their front-line supervisors and managers on several changes to two significant workplace laws. To assist with that training, HR Answers, Inc. will be offering a briefing on the ADA Amendments Act on December 11th, from 7:30 to 9:30 a.m. This session will be followed on January 7th by a briefing focused on the final FMLA regulations.