New FMLA regulations go into effect January 16, 2009 with a focus on strengthening protections related to leave for armed forces families. Along with changes to FMLA there are multiple clarifications and other adjustments to the FMLA.
Editor’s comment: On November 17, 2008, the United States Department of Labor (“DOL”) published long-awaited revised and updated final rules interpreting the Family and Medical Leave Act (“FMLA”). The new regulations go into effect on January 16, 2009, unless Congress votes to disapprove the regulations. The new rules help implement the military family leave provisions enacted in the National Defense Authorization Act for fiscal year 2008 and provide clarifications in response to court decisions and public comments pertaining to both the 2008 Notice of Proposed Rulemaking and public comments submitted in reply to DOL’s 2006 Request for Information. The changes and clarifications are detailed and we believe you will begin to see incident specific issues almost immediately. With the potential specifics resulting in many different scenarios, we strongly encourage you to consult legal counsel to answer your case specific questions.
Overview of clarifications and changes we consider significant
§ FMLA protection is expanded to include family members caring for a “covered service member” with a serious injury or illness incurred in the “line of duty on active duty.” These family members are able to take up to 26 work weeks of leave in a 12-month period.
§ Family members of personnel on active duty may also take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post deployment activities and (8) additional activities where the employer and employee agree to the leave.
§ Exigent Circumstances Leave is not available to family members of individuals in the Regular Armed Forces, but rather extends only to those covered military members called or ordered to active duty as part of a contingency operation – retired members of the Regular Armed Forces, members of the Reserves, including the retired reserves, and/or members of the National Guard.
§ Professional Employer Organizations (“PEOs”) which contract with employers are not joint employers with their clients unless the PEO: (1) has the right to hire, fire, assign, or direct and control the client’s employees, or (2) benefits from the work that the employees perform.
§ The final rules now codify an existing rule that an employee may voluntarily settle or release FMLA claims without the approval of the court or DOL.
§ Consolidation of multiple provisions on employer notice which provide that an employee needing FMLA leave must follow the employer’s usual call-in procedures for reporting an absence unless unusual circumstances exist. An employee’s consequences for failing to provide proper notice remain the same to enhance employer planning for employee absences.
§ Under the current regulations, there are six types of conditions that qualify as a serious health condition. The new regulations keep each of the definitions, but clarify three:
o First, to meet the definition requiring that an employee have a condition involving more than three consecutive days of incapacity plus “two visits to a health care provider,” the employee must make two visits within the 30 days beginning with the initial date of incapacity and the first visit must occur within the first seven days of the incapacity.
o Second, to meet the definition that requires an employee have a condition that involves more than three consecutive days of incapacity plus continuing treatment, the first visit to a health care provider also must occur within seven days of the first day of incapacity.
o Finally, to qualify as an employee with a “chronic serious health condition,” an employee must make at least two visits to a health care provider per year.
§ Employees who take intermittent FMLA leave for planned medical treatment have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to disrupt unduly the employer’s operations.
§ If an employee voluntarily performs “light duty” work, time spent doing such work will not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period.
§ Employers may deny “perfect attendance” awards to employees who do not have perfect attendance because they took FMLA leave, provided the employer treats employees taking non-FMLA leave in the same way.
§ Employers (e.g., Human Resources) may contact an employee’s healthcare provider directly, but only for clarification and authentication of a medical certification. The employer may not request additional information beyond that included in the certification form. If an employer deems a medical certification incomplete or insufficient, the reasons must be stated in writing and the employee must be given seven days to cure any deficiency.
§ Employers must account for FMLA leave using an increment no greater than the shortest period of time used to account for other forms of leave, provided that it is not greater than one hour.
§ The terms and conditions of an employer’s paid leave policies apply and must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave. (Essentially an employee may elect to use or an employer may require use of paid time off concurrently with unpaid FMLA leave and this eliminates procedural distinctions between the use of paid vacation or personal leave versus paid medical or sick leave as a substitute for FMLA leave.)
§ Employers are required to provide employees with a general notice of FMLA rights, an eligibility notice, a rights and responsibilities notice, and a designation notice. The healthcare certification form has been updated and revamped. The DOL has provided several new sample forms that employers can use for these different purposes, including forms covering exigent circumstances and covered service member family leave.
§ If an employer has no handbook or other written materials, it must provide general FMLA notice to new employees upon being hired. An employer has 5 business days to respond to an employee’s request for leave. If an employee suffers individual harm because the employer fails to follow the notification rules, the employer may be liable.
§ Where the amount of leave to be taken is not known at the time of FMLA designation, an employer may inform the employee of the number of hours counted against his or her FMLA leave entitlement only upon employee request, and no more often than every 30 days.
§ Allow employers to require a fitness-for-duty certification before an employee on intermittent FMLA leave may return to work.
We again note these changes are voluminous and detailed. We suggest clarifying any specific issues with legal counsel to review your existing policies and to consider changes to those existing policies. We continue to recommend appropriate documentation be completed and maintained in all cases. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts, comments or questions, please send a reply to sbiery@keefe-law.com.
