Attorneys prep for FMLA changes

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Revisions to the federal Family and Medical Leave Act (FMLA) will take effect next month.
So, many attorneys are making sure local employers and employees understand that communication will be critical to avoid unnecessary litigation that could arise from the first changes to the law since its implementation in 1995.

While Employment Law attorney Amy D. Hartwig said she expects “growing pains” after Jan. 16, 2009, ultimately the FMLA changes should reduce the number of lawsuits brought by employers or employees regarding unpaid medical leave issues.

“This is good for everybody and the changes should reduce the need for extensive interpretation and litigation by employees and employers,” said Hartwig of Michael Best & Friedrich, LLP. “The old regulations from 1995 were very controversial and sparked a lot of litigation.”

Taking Notice

One of the key changes according to Hartwig is a new requirement that employers must give enhanced notice to workers about eligibility and their rights and responsibilities for taking leave.

She said she expects clarification of how an employer and worker should communicate throughout the process will reduce misunderstandings and potential legal action.
In addition to posters and handbooks, employers, under the new rules, have to give a reason within five business days why a claim is not eligible for FMLA.

“In the past, an employer could just simply deny eligibility,” Hartwig said.

“For instance, if an employer has not met the formal notice obligations under the new rules, they could be walking into a lawsuit,” Hartwig said. “Or they could end up having to provide an individual more time off of work.”

At the same time, employees also have to justify to employers why the leave is eligible under the FMLA regulations and provide notice in advance, when possible.

Employees will not be able to simply call in sick and expect the absence to be covered by FMLA. Rather employees will have to provide an explanation as to why the leave qualifies and why prior notice was not given.

“They take away some of the guessing game because employees have a higher obligation to communicate with employers,” Hartwig said. “If an employee does not, the employer can deny leave.”

Minimize Conflict

Employment Law attorney Bradden C. Backer, of Friebert, Finerty & St. John, said in the past, he has dealt with issues of whether or not an employee had given appropriate notice.

While generally, employers are not inclined to litigate notice issues unless the offenses are blatant or repeated, said Backer, he expects the new regulations should minimize the potential.

“I think there will be greater certainty and greater sense of fairness in striking a balance between an employee’s right to take leave and an employer’s need to plan for leave,” Backer said.

In addition to making sure employers are in compliance with the new federal FMLA, attorneys also have to make sure clients are not in violation of the state law.

For example, the Wisconsin FMLA only has three qualifying reasons for unpaid leave, compared to five for the federal law. Two new federal provisions pertain specifically to eligibility requirements for members of the military.

“Wading through 762 pages of regulations and identifying where the differences between state and federal law exists and how to apply each in the correct manner can be frustrating,” Hartwig said.

Backer said that while the process is tedious, it is necessary to ensure employers are providing employees with the most generous leave benefit available under state or federal law.

“It’s an education process, which needs to be revisited by employers to help integrate the inconsistencies between the Wisconsin law and the federal law,” Backer said.