All covered employers under the federal Family and Medical Leave Act (“FMLA”) must comply with the United States Department of Labor’s (“DOL”) Final Regulations beginning on January 16, 2009. A covered employer is a person engaged in commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The workweeks do not have to be consecutive. In addition, employers must count both parttime and full-time employees as well as anyone receiving compensation, including owners who receive compensation and salespersons who receive commissions. The DOL issued its Final Regulations, which amend the previous regulations in some significant ways. In addition, the Final Regulations address the new laws enacted entitling employees to military family leave.
Compliance begins with the posting of a new poster explaining the law and some of the changes in the Final Regulations. Employers must post the poster in conspicuous places where they post other government posters. In addition, the FMLA requires that employers have a policy regarding the FMLA and that the employers distribute the policy to its employees. Both the original and Final Regulations include provisions employers must and may include within its policies. Optional revisions include the use of new forms issued by the DOL, such as a new form for notifying employees of their eligibility, rights and responsibilities under the FMLA and two new medical certification forms for serious health conditions of employees and employee’s family members. The DOL also recommends the use of certification forms to determine the need for military FMLA leave due to a serious injury or illness of a covered servicemember and the determination of a qualifying exigency for military family leave. After obtaining the certification, employers may use the new form for designating the amount of FMLA leave. However, these forms are only recommended and employers have the option of amending the forms based upon their own requirements and policies.