With the revised federal FMLA regulations in effect for more than a year, employers should ensure their procedures are up to date.
First, the current regulations are much more specific regarding the contents of an employer's FMLA policy. The regulations require covered employers to include in their employee handbook an FMLA policy that includes all of the information contained in the FMLA general notice poster. If your handbook policy has not been updated to reflect the revised regulations, it is very likely your policy does not meet this requirement. There are several ways to ensure that your policy includes all mandated language. One way is to use the U.S. Department of Labor (DOL) general notice poster as your FMLA policy. This might be the best option for small employers, but does not allow for customization. Another option is to incorporate all of the FMLA general notice language into your FMLA policy. A third way to comply with this requirement is to provide a hyperlink from your policy to the DOL notice.
Second, if your organization intends to exclude from FMLA coverage employees at worksites having fewer than 50 employees within 75 miles, be sure that such intent is clearly stated in your FMLA policy. A number of courts have ruled that employers who intend to apply this coverage exclusion must clearly state so in their policy.
Finally, double-check that your FMLA notice requirements are up to date. The revised regulations require employees to be informed about whether or not they are FMLA-eligible and to be informed regarding their obligations during their leave and upon return from leave. If an employee's eligibility for FMLA leave cannot be determined at the time he or she first requests FMLA, the employer must follow up with the designation notice once the relevant information has been received. Not providing the employee with the proper notices and FMLA leave information is more than a simple technical violation. The regulations explicitly state that failing to comply with the regulatory notice obligations may form the basis for a claim that an employer has unlawfully interfered with an employee's federal FMLA rights.
Take a moment to review your federal FMLA policy and process and confirm that your organization is up to date and in compliance with the current FMLA obligations.