FMLA "To Do" List: Prepare Your Workplace for New Regulations Effective January 16, 2009

During a webinar we conducted earlier this week regarding the impending changes to the FMLA regulations, we provided to participants a list of practical tips to assist employers in complying with the new regulations, which take effect on January 16, 2009.

For your benefit, we provide the same list below with additional commentary. In early January 2009, we will notify you of the availability of additional information which will assist in adapting your FMLA policy and the new FMLA forms to your operational and business needs. In the meantime, please contact FRR attorneys Jeff Nowak (312.786.6164 or jsn@franczek.com) or Bill Pokorny (312.786.6141 or wrp@franczek.com).

Practical tips 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.
• 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 in less than one month. 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.
• 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 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.
• Look for new opportunities to assert your rights: As explained in the webinar, 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.