Have You Updated Your FMLA Policy Yet?
The New FMLA Regulations Require Immediate Steps to Ensure Employer Compliance

On January 16, 2009, the U.S. Department of Labor ("DOL") issued a comprehensive set of revisions to the regulations implementing the Family and Medical Leave Act (“FMLA”) and issued new regulations implementing the military family leave entitlements enacted by Congress as a part of the 2008 National Defense Authorization Act.  While many employers will not experience the full impact of the new regulations until an employee actually requests FMLA leave, all covered employers need to take a few immediate steps in order to ensure compliance with the new regulations.

First, every employer covered by the FMLA is required to post a notice explaining employee rights and responsibilities under the FMLA – including the new rights created by the military family leave amendments.  An employer can fulfill this "general notice" requirement by posting the newly revised DOL "Employee Rights and Responsibilities" poster on its premises in conspicuous places where employees work.  Covered employers must post this general notice even if they do not have any employees currently eligible to take FMLA leave.  The new regulations provide that electronic posting of the general notice is sufficient, so long as it includes all of the information in the updated DOL rights and responsibilities poster and the electronic notice is accessible to all employees. 

Second, if an employer has even one employee eligible for FMLA leave, the new regulations require the employer to not only post general notice information, but to provide each of its employees with general notice information – including, at a minimum, all of the information contained in the new DOL poster.  The regulations require employers to provide employees with this information by either including the general notice information in employee handbooks or other written guidance given to employees concerning benefits or leave rights; or, if the employer has no employee handbook or other written guidance on employee benefits or leaves, by distributing a copy of the general notice to each employee at the time he or she is hired.  In either case, the regulations allow the employer to distribute this information electronically.  The regulations also provide that this requirement may be satisfied by simply including a copy of the DOL's rights and responsibilities poster in the employee handbook. 

Employers that have existing employee handbooks – whether those handbooks do or do not currently include an FMLA policy – or other written policies providing guidance to employees on benefits or leaves need to update their handbooks or policies immediately to include the required “general notice” information.  In addition, the regulations require an employer whose workforce is comprised of a significant portion of workers who are not literate in English to provide the general notice in a language in which the employees are literate. 

A copy of the new DOL "Employee Rights and Responsibilities" poster is available on the DOL Web site at http://www.dol.gov/esa/whd/regs/compliance/posters/fmlaen.pdf.  Employers should also note that the DOL has substantially updated its FMLA forms to reflect the changes in FMLA leave administration under the new regulations.  The updated forms, including certification forms, FMLA eligibility notice and FMLA designation notice, are available on the DOL Web site at  http://www.dol.gov/esa/whd/fmla/.