In past issues of HR Hero Line, we've examined the FMLA regs issued by the Department of Labor (DOL) in November 2008. This week, the attorney editors of the Kentucky Employment Law letter examine a few more changes made by the new FMLA regulations including holidays, joint employers, leave for pregnancy and childbirth, and employer contact with health care providers.

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Highlights of new regs
On November 17, 2008, the DOL published new Family and Medical Leave Act regulations. The regulations are the first significant FMLA changes since the Act became law in 1993. The DOL states that the new rules should help improve communication between employees, employers, and health care providers and make the law operate more smoothly. The new rules also come as a result of the passage of the military family leave provisions in the National Defense Authorization Act (NDAA) and the U.S. Supreme Court and lower court cases invalidating portions of the previous regulations. The changes to the FMLA regulations took effect January 16, 2009.

Audio Conference: 5 New Leave Laws Expected in 2010: Prepare for Changes to Your FMLA Policies

Eligible employees. To be eligible for FMLA protection, an employee must have worked with an employer for at least 12 months and for at least 1,250 hours in the last 12 months. According to the new regulations, when measuring the 12-month requirement, employers are no longer required, in most cases, to count work performed before a break in service lasting seven years or more. Military service also shouldn't be included in any gap determination. Similarly, the hour requirement has been rewritten so that an employee who would have met the 1,250-hour requirement if not for intervening military service remains eligible for FMLA leave.

Joint employment. The new FMLA regulations clarify that a joint employer relationship generally doesn't arise from professional employer organizations (PEOs) if the PEO performs only administrative functions. However, if the PEO or vendor actually has the right to hire, fire, and assign work, a joint employer relationship is still likely to exist.

State-by-state comparison of 50 employment laws in all 50 states, including employee leave

Leave for pregnancy or birth. The new FMLA regulations consolidate references to employees' leave rights for pregnancy and birth into one regulation. The regulations now provide that both spouses can take their full 12-week allotment of leave for the birth of a child with a serious health condition regardless of whether they work for the same employer. FMLA leave is also available for the placement of adopted children. In addition, FMLA leave now includes time to travel to another country to complete an adoption.

Expansion of health care providers. The new FMLA regulations expand the long list of health care providers already eligible to prepare FMLA certifications and treat employees to include physicians' assistants.

Holidays. Under the new FMLA regulations, when an employee takes a full week of FMLA leave and a holiday occurs within the week, it doesn't affect how much of the employee's 12-week FMLA allowance has been used -- the week is still counted as a full week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the intervening holiday won't count against his 12-week entitlement unless he was otherwise scheduled and expected to work during the holiday.

Employer's contact with health care providers. The previous FMLA regulations prohibited employers from directly contacting health care providers in most instances. The new regulations provide an exception to that rule. Employers can contact health care providers if an employee's serious health condition may also be considered a disability under the Americans with Disabilities Act (ADA) as long as they follow the ADA restrictions. The new rules also allow employers to contact an employee's physician for clarification and authentication of medical certifications; however, employers can only initiate the contact through a health care provider, HR professional, leave administrator, or management official. Under no circumstances can an employee's direct supervisor contact the health care provider.

Audio Conference: FMLA Notice and Medical Certification: How to Comply with New Regs

Bottom line
Thus far, commentators have opined that the new FMLA regulations are more favorable to employers. However, only time will tell the impact the new rules will have. The regulations went into effect January 16. Therefore, employers should revisit their FMLA policies and procedures to ensure they are in compliance with the new regulations.

FMLA Compliance: Practical Solutions for HR