Stites & Harbison, PLLC

The Family Medical Leave Act of 1993 (“FMLA”) is a well-intended statute meant to assist employees balance work and family life, while also protecting the legitimate business interests of employers.  Employers and joint employers with at least 50 employees within a 75-mile radius are required have written FMLA policies.  However, the law recently changed substantially.  In the fall of 2008, the Department of Labor (“DOL”) revised the FMLA’s administrative regulations, which became effective on January 16, 2009.  These new regulations provide guidance not only on the FMLA general requirements, but also on newly enacted legislation regarding Military Exigency Leave and Military Caregiver Leave. 

A few examples of changes to the law include, but are not limited to: 

• Eligible employees are entitled to 26 weeks of leave to care for a spouse, child, parent, or next of kin who is an eligible servicemember undergoing medical treatment, recuperation, therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness;
• The definition of “serious health condition” has changed;
• Employers, but not necessarily immediate supervisors, may contact an employee’s health care provider directly to clarify or verify the authenticity of medical certifications without an employee’s consent;
• The law requires three types of specific notice to employees:  Eligibility Notice (Form WH-381); Rights and Responsibilities Notice (Part B of Form WH-381); and Designation Notice (Form WH-382) – see new forms at www.dol.gov;  
• The contents of the new General Notice Poster (Publication 1420) must be included in the employer’s written FMLA policy and distributed to employees via either hard copy or electronic media.  If there is an employee handbook, it is not enough to affix the Poster to a conspicuous bulletin board.  The employer must include in its handbook everything that is contained in the Poster – including information about filing a complaint with the DOL; and
• Failure to meet the FMLA’s notice requirements can result in civil monetary penalties of $110 per offense.

In addition to the civil monetary penalties, employers failing to comply with the law may be liable to a prevailing employee for back pay, actual monetary losses, liquidated damages, injunctive relief, and attorneys’ fees.  The costs for non-compliance can be substantial.  Therefore, covered employers must be aware of the changes in the law and must revise their policies and forms immediately in accordance with the revised regulations.

Karen M. Paulin is an Associate in the Louisville office where her practice focuses on employment law.

This article is reprinted in its entirety with the permission of the Kentucky Chamber of Commerce.