Mar 08, 2013 General Employment Issues

Employers Must Update Their FMLA Posters and Take Other Steps to Comply With New FMLA Regulations

Employers covered by the federal Family and Medical Leave Act (“FMLA”) must now update their FMLA posters and sets of FMLA form notices in light of new U.S. Department of Labor (“DOL”) FMLA regulations.  Covered employers should also review and update their FMLA policies and procedures to ensure that they are consistent with the new DOL regulations.  

1.  Background.

      The FMLA provides eligible employees with certain family, medical and military family leave.  Under the FMLA, employers with 50 or more employees generally must, among other things: (a) conspicuously post in the workplace a poster summarizing key FMLA benefits and protections; and (b) provide specific notices to employees who request or need FMLA leave.  The DOL’s regulations interpreting the FMLA provide important guidance for employers and employees regarding their rights and obligations under the FMLA.  The DOL has also published model form notices that employers may choose to use or adapt to comply with their FMLA notice obligations.

2.  Key Effects of the DOL’s New FMLA Regulations.

      (a)  Updated FMLA Poster.  The new regulations require covered employers to post the DOL’s updated FMLA poster.  A copy of the updated poster is available on the DOL’s website, at:

      (b)  Updated DOL Model Forms.  The DOL has also updated the set of model forms that employers may use or adapt to comply with their FMLA notice obligations . This new set of model forms includes: (i) a new form Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-v); and (ii) minor changes to the DOL’s prior set of model forms.  Employers that use the DOL’s model forms should use the DOL’s updated set of model forms going forward.  Employers that have created their own forms based on the DOL’s model set of forms should review the updated DOL model forms and make any necessary updates to their own forms.   

      (c)  Implementation and Clarification of Recent Statutory Amendments to the FMLA.  The new regulations implement and clarify certain provisions in two prior statutory amendments to the FMLA:  (i) military family leave provisions contained in the National Defense Authorization Act for Fiscal Year 2010; and (ii) provisions regarding leave for airline flight crews and flight attendants in the Airline Flight Crew Technical Corrections Act.  The regulations address, among other things:

    • leave to care for a covered veteran with a serious illness or injury, including the definition of a covered veteran;
    • the covered illnesses and injuries for which military caregiver leave is available, and the nature of the certification employers may request from employees to verify such leave;
    • the circumstances and terms of qualifying exigency leave available to eligible employees with covered family members in the military; and
    • the service eligibility requirements for airline flight crews and flight attendants.

      (d)  Other Clarifications.  The new regulations also: (i) clarify the calculation of intermittent leave; (ii) add language to the FMLA’s recordkeeping provision setting forth an employer’s obligation to comply with confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (“GINA”); (iii) amend references to the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) to more closely mirror the USERRA regulations; and (iv) remove the DOL’s model forms from the appendices of the regulations to provide more flexibility for the DOL to update these forms in the future.  

3.  Next Steps.

      Compliance with the new FMLA regulations is required effective March 8, 2013.  Employers must ensure that they: (a) post the new FMLA poster; (b) update the set of forms they use to provide required FMLA notices to employees; and (c) review their FMLA policies and procedures to ensure that they accurately address (i) the military family leaves available to employees under the FMLA and (ii) FMLA leave for airline flight crews and flight attendants, if applicable.  Employers should also: (a) confirm that they are including a GINA safe harbor addendum with their FMLA (and any other applicable medical) certifications, advising employees and health care providers not to disclose genetic information on the certifications; and (b) ensure that any employee genetic information is stored in the required confidential manner. 

      Please do not hesitate to contact any of our attorneys if you have any questions regarding the information in this alert, or any questions generally regarding your company’s obligations under the FMLA or any similar state leave laws that may be applicable to your employees.