Department of Labor Publishes Revised Final Regulations Implementing the Family and Medical Leave Act
December 22, 2008
James W. "Jim" Michalski- Los Angeles
Todd D. Steenson- Chicago
The Department of Labor (DOL) recently issued its revised final regulations implementing the Family and Medical Leave Act of 1993 (FMLA). The regulations have been extensively rewritten and reorganized, and include substantive changes regarding employee eligibility for FMLA leave, the definition of a serious health condition, medical certification procedures, and the procedure for evaluating and responding to leave requests. In particular, the procedure for responding to FMLA leave requests will now require an employer to give employees two response notices, an “eligibility notice” when the request is received and a “designation notice” when the request is granted. The DOL has also prepared new notice and medical certification forms.
The new regulations, which are the first modifications to the FMLA regulations since the DOL issued them in 1995, become effective January 16, 2009. As of that date, employers must post the new FMLA general notice, revise their FMLA policies and their employee handbooks to provide the information required by the new general notice and to incorporate changes in the regulations, and be prepared to respond to leave requests by following the new procedures, and using the new eligibility and designation notices and medical certification forms.
This bulletin provides an overview of some significant changes that employers should be aware of. It does not attempt to address all the changes in the new regulations. We also address the regulations implementing the two new forms of FMLA leave for families of members of the U.S. armed services that were enacted earlier in 2008.
(See our February 6, 2008 alert.)
Employer Obligation to Give Advance Notice of FMLA Rights to All Employees
The final regulations continue to require every employer covered by the FMLA to post a notice explaining the FMLA, but it provides a new form for this required posting. The posting must be in a conspicuous place where it can be seen by both employees and applicants. In addition, when an FMLA-covered employer has eligible employees, it must also provide the information contained in this notice to employees either by: (1) including all of the information about the FMLA in an employee handbook or other written materials given to employees concerning employee benefits or leave rights; or (2) if no such written materials exist, giving this notice to each new employee upon hire. Both of these notices must be given on or before January 16, 2009, when the new regulations take effect.
The initial posting and notice may be provided electronically as long as all applicants and employees have access to the posting, all employees have access to the notice, and both notices include, at a minimum, all the information included in the required posting. If some employees or applicants do not have access to an electronically provided initial posting or the further notice (e.g., if some employees do not have computer access or the posting is only on a company intranet that is not accessible to applicants), the employer must maintain the initial posting on its premises where it can be readily seen by both applicants and employees and physically provide the second notice to those applicants or employees without computer access.
Employees’ Notice Obligations
The new rules heighten and clarify employees’ obligations to give notice of their need for FMLA leave.
Foreseeable Leaves. Like the current provision, the final regulations require employees to provide at least 30-days notice if the need for leave is foreseeable or as soon as practicable if leave is foreseeable but 30-days notice is not practicable. Foreseeable leave includes expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of an employee or family member, or planned medical treatment for a serious injury or illness of a covered service member.
Employers may require employees to comply with their usual notice and procedural requirements for requesting foreseeable leave, provided they do not require notice sooner than the FMLA requires. If the employee fails to provide at least 30-days notice of foreseeable leave following the employer’s procedures, the employer may require the employee to explain why such notice was not practicable. If an employee cannot justify the failure to give the required notice, FMLA-protected leave may be delayed or denied.
Unforeseeable Leaves. For unforeseeable leaves, the final regulations provide that an employee must give notice as soon as practicable, which means within the time prescribed by the employer’s usual call-in procedures, absent unusual circumstances. This modifies the current regulation, which has allowed the employee up to two full business days to notify the employer of a need for FMLA leave. Leave may not be denied if the employee received emergency medical treatment and circumstances did not allow the employee to contact the employer. But if the employee cannot show that unusual circumstances justified a failure to comply with an employer’s established call-in procedures, such as calling a designated number or a specific person to request leave, FMLA leave may be delayed or denied.
The employee must always provide enough information to allow the employer to determine whether the FMLA applies. Calling in “sick” without providing more information is not enough and will not trigger an affirmative duty for the employer to inquire whether the absence might be FMLA-qualifying. When an employee seeks leave due to a FMLA-qualifying reason for which the employer has previously provided FMLA-protected leave (e.g., intermittent leave), the employee must specifically refer to the previously-approved reason for leave.
Response to Requests for Leave
The second set of major changes concerns the employer’s obligations upon receiving an FMLA leave request. The new regulations now require an employer to give two notices: an eligibility notice and a designation notice. Employers may provide the notices at the same time if they have sufficient information to do so.
The eligibility notice must be given within five business days after the employer learns about the request or need for FMLA leave (as opposed to two business days under the current regulations). It can be given orally or in writing as long it informs the employee whether he or she has met the general FMLA eligibility requirements (i.e., worked for the employer for 12 months and worked 1,250 hours)1 and whether he or she still has FMLA leave available in the current 12-month period. If the employee is not eligible, the notice must provide at least one reason why the employee is ineligible. If the employee is eligible for additional leave (for a qualifying reason), the employer must also provide a “rights and responsibilities” form, which details the employee’s specific obligations regarding FMLA leave and explains any consequences of the employee’s failure to meet these obligations. This notice must tell the employee about any medical certification requirement and the consequences for not complying with such requirement, the right to substitute paid leave, the requirements for maintaining health benefits during FMLA leave and how to pay premiums for continuing benefits, the employee’s potential liability for unpaid health insurance premiums if he or she fails to return to work following leave, information concerning key employee status (if applicable), and job-restoration rights at the end of the leave.
Once the employer has enough information to determine whether a particular leave qualifies for FMLA leave, such as after receiving any requested medical certification, the employer has five business days to give the employee a designation notice stating that FMLA leave will be granted as well as the number of hours, days or weeks that will count against the FMLA entitlement. It must also state any fitness for duty certification requirements. If it is not possible to state the amount of time that will be counted at the time the leave is granted, the employer must provide the information upon an employee’s request, but no more often than once every 30 days. Sample eligibility and designation notices are attached to the final regulations.
Employer’s Failure to Give Notice
An employer’s failure to give either an eligibility or a designation notice may constitute an interference with or restraint or denial of the exercise of an employee’s FMLA rights, and the employer may be liable for compensation and benefits lost as a result of such violations. However, if an employer does not timely designate the employee’s absence as FMLA leave, the employer may retroactively designate it as FMLA leave, with appropriate notice, if the employer’s failure does not cause harm to the employee.
Serious Health Condition
The final regulations retain the six individual definitions of a qualifying “serious health condition” while adding guidance on three regulatory matters. First, one of the definitions of serious health condition involves a period of incapacity of more than three consecutive, full calendar days plus two visits to a health care provider, or a similar period of incapacity coupled with one visit to a health care provider and a regimen of continuing treatment. Under the new regulation, in the absence of extenuating circumstances, the first (or only) in-person doctor visit under either scenario must occur within seven days of the start of the incapacity. In the first scenario, the second visit to the health care provider must occur within 30 days of the start of the incapacity. Second, the regulation clarifies that to establish a chronic serious health condition, the employee must generally have at least two visits to a health care provider each year. Third, the term health care provider now includes physician’s assistants.
Certification of Health Care Provider
The regulations make a number of changes concerning the medical certification requirement. Initially, the regulations increase the timeframe for an employer to request certification from two to five days after an employee gives notice of the need for leave or, in the case of unforeseen leave, the date the employee commences leave.
There are two new medical certification forms for regular FMLA leave – one for use in evaluating the medical need for leave due to an employee’s own serious health condition and one for leave to care for a family member with a serious health condition. A third certification form applies when an employee requests leave to care for a military service member. These forms are attached to the final regulations.
The regulations also broaden the permissible means of contacting an employee’s health care provider regarding a medical certification. After an employee submits a complete medical certification, an employer may contact the employee’s health care provider for purposes of clarification and authentication of the medical certification. The HIPAA privacy rules apply to such contacts. Such contacts may be initiated only by a health care provider, human resources professional, leave administrator or management official – but not the employee’s direct supervisor. If the employee refuses to permit his or her health care provider to communicate with the employer, the employer may deny FMLA leave. In the absence of an ADA-related disability or condition covered by workers’ compensation, the employer cannot request more information than is described on the FMLA medical certification form.
The regulations also expand the medical information an employer may seek in certain instances. If an employee’s serious health condition may also be a disability under the ADA, covered by workers’ compensation, or the employee seeks paid leave, employers may now follow procedures for requesting medical information under the ADA, workers’ compensation or their paid leave policies, provided that they evaluate the leave request under FMLA standards. Employers may consider the medical information obtained through these procedures in determining an employee’s entitlement to FMLA leave.
Finally, if an employee’s serious health condition extends beyond the end of a leave year, as the employer calculates it, the employer can request a new certification.
Medical Certification Deficiencies
An employee must submit his or her medical certification within 15 days absent unusual circumstances. If the employee submits an incomplete, vague or non-responsive medical certification, and the employer wishes to challenge it, the employer must notify the employee in writing of the additional information that is necessary to complete the certification. The employee then has seven calendar days to provide the requested information. If the employee fails to submit a complete and sufficient certification despite this opportunity to cure the deficiency, the employer may deny FMLA leave.
Medical Recertification
The regulations maintain the general rules that an employer may not request recertification more often than every 30 days and that, if the original certification stated that the condition would last more than 30 days, the employer cannot request recertification until the stated duration of the condition has expired. Nonetheless, an employer can always require a recertification every six months, regardless of the expected duration of the condition. Recertification may be requested more often in certain circumstances, such as when there are significantly changed circumstances (e.g., an employee’s taking intermittent leave more frequently than predicted in the original certification or an unexplained pattern of taking intermittent leave the day before a scheduled day off), the employer receives information that casts doubt upon the stated reason for absence, or the employee requests a leave extension.
Minimum Increment of Intermittent Leave
The employer must account for intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour. But employers are not required to account for FMLA leave in increments of six minutes or even 15 minutes simply because their payroll systems are capable of doing so.
Where the nature of the workplace makes it physically impossible for employees to start work mid-way through the shift, the entire shift may be designated as FMLA leave. The DOL, however, intends this exception to be applied narrowly and gives examples such as a flight attendant, train conductor, or a laboratory technician whose workplace is inside a “clean room” that must remain sealed for a certain period of time.
Eligibility Determination Maintained for 12 Months
Employee eligibility is determined (and notice must be provided) at the beginning of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. All FMLA absences for the same qualifying reason are considered a single leave and the employee will remain eligible for leave for that reason throughout the applicable 12-month period. When an employee seeks leave for a reason for which he or she has already been granted FMLA leave during the applicable 12-month period, the employee must specifically reference the qualifying reason for leave.
Eligibility for FMLA Leave While on Other Leaves of Absence
The 2008 regulations provide that employees who become eligible for FMLA protection while on any other type of leave automatically acquire FMLA leave protections. In other words, although a different type of leave might begin before FMLA eligibility accrues to the employee, FMLA protections commence at the point the employee qualifies for FMLA leave.
Substitution of Paid Leave
Where paid leave is to be substituted for unpaid FMLA leave, the employer must clearly inform the employee of the procedural requirements for obtaining paid leave and make clear that meeting those requirements is necessary only in connection with the paid leave, not the unpaid FMLA leave.
Also, upon request, employees must provide FMLA medical certification even when substituting paid leave. The current FMLA regulations provide that when an employee seeks to substitute paid leave for FMLA leave, the employee only has to comply with the medical certification standard under the employer’s sick leave plan, even if it is less stringent than the FMLA. The final regulations delete this provision because it conflicted with the employer’s statutory right to require, as a prerequisite to FMLA leave for a serious health condition, that the employee provide a medical certification to substantiate the serious health condition.
Finally, even though an employer may not force an employee to substitute other paid leave for FMLA leave when the employee receives disability or workers’ compensation benefits during a period of FMLA leave, the new regulations allow the parties to agree to have other paid leave supplement temporary disability benefits, such as where a short-term disability plan provides replacement for only two-thirds of the employee’s salary.
Holidays
If an employee takes a full week of FMLA leave, the fact that a holiday falls within the week has no affect on the employee’s FMLA use. But where an employee takes FMLA leave in increments of less than one week, the intervening holiday will not count against the employee’s FMLA
entitlement unless the employee was scheduled to work on the holiday.
Time Spent Performing Light Duty Does Not Count Toward FMLA Entitlement
Under the prior regulations, time spent by an employee in a light duty position could be counted against the employee’s FMLA allowance despite the fact the employee was working. The new regulations potentially increase the length of an employee’s FMLA leave by stating that an employee’s right to FMLA leave and job restoration are not affected by light duty assignments. In other words, a light duty assignment is not FMLA leave. Thus, the employee’s right to job restoration is essentially on hold during the period of time an employee performs a light duty assignment. At the conclusion of the voluntary light duty assignment, the employee has the right to be restored to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement. Additionally, employers may not require employees to work light duty jobs instead of taking FMLA leave.
Fitness-for-Duty Certifications
The current FMLA regulations allow employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. This is called a “fitness-for-duty” certification. The final regulations make two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Second, although an employer may not obtain a fitness-for-duty certification following each use of intermittent leave, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work following intermittent leave, but not more often than once every 30 days.
Bonuses
The existing FMLA regulations state that a perfect attendance bonus cannot be denied based on FMLA-covered absences. In a significant change, the new regulations provide that if a bonus is based on the achievement of a specific goal such as hours worked, products sold, or perfect attendance, and the employee has not met that goal due to an FMLA leave, the payment may be denied unless it would be paid to employees who were on an equivalent non-FMLA leave.
Substance Abuse
Employers may enforce policies calling for employment termination for substance abuse even if the employee takes FMLA leave for substance abuse treatment.
Increased Damages
The final FMLA regulations clarify and increase the penalties for interfering with an employee’s rights under the FMLA. Employers may be liable “for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.”
Waivers of FMLA Rights
In response to court decisions prohibiting the settlement of FMLA claims without approval by the DOL or a court, the new regulations clarify that the prohibition against waiving FMLA rights applies only to future rights. FMLA claims arising out of past events or conduct may be settled without court or DOL approval.
Joint Employer Defined and Clarified to Exclude Professional Employer Organizations
The new regulations contain language clarifying that a joint employer relationship usually will not arise from professional employer organizations (i.e., temporary agencies) in instances where such organizations merely perform administrative functions. But, in instances where such organizations or a similar vendor maintains the right to hire or fire an employee, and assign him or her work, a joint employer relationship will likely exist. Whether a joint employer relationship exists is based on the totality of the circumstances.
Regulations Implementing Military Family Leave Amendments
The final regulations also implement the two new FMLA leave entitlements for families of military personnel that were enacted in early 2008. The new provisions provide leave due to a “qualifying exigency” to enable eligible employees to manage the affairs of family members who are called to active duty in the National Guard or military reserves and allow eligible employees to care for covered servicemembers with a serious illness or injury incurred
in the line of duty.
Leave Due to a Qualifying Exigency
Employees are entitled to take up to 12 workweeks of leave during a 12-month period due to a “qualifying exigency” relating to the fact that the employee’s spouse, son, daughter or parent who is a “covered military member” is on active duty or has been notified of an impending call or order to active duty. Leave taken due to a qualifying exigency counts toward the total of 12 workweeks of leave that eligible employees may take for most other FMLA-qualifying reasons during the 12-month period designated by the employer.
“Covered military members” include only members of the National Guard or reserves or certain retired members of the regular armed forces or reserves. Employees are not entitled to this leave if they are related to members of the regular armed forces on active duty status. Generally, the call to duty must be a federal call to active duty, as opposed to a state call to active duty. Unlike other FMLA provisions, however, for purposes of leave due to a qualifying exigency, a “son or daughter” can be any age, rather than only under the age of 18.
Leave may be taken for one or more of the following qualifying exigencies arising from the call or notice of an impending call to active duty of the covered military member:
- Short-notice deployment: To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty seven or fewer calendar days prior to the date of deployment. Leave for this reason can be used only during the seven day period between the notice and the deployment.
- Financial and legal arrangements: To make or update financial or legal arrangements to address the covered military member’s absence.
- Military events and related activities: To attend (1) any official ceremony, program or event sponsored by the military that is related to the active duty status; or (2) family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the call to active duty.
- Childcare and school activities: (1) To arrange a change to existing childcare; (2) to provide childcare on an urgent, immediate need basis; (3) to enroll in or transfer to a new school or day care facility when necessary due to the call to active duty status; and (4) to meet with school or day care staff when such meetings are necessary due to the call to active duty.
- Rest and recuperation: To spend time, not to exceed five days of leave in each instance, to be with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.
- Counseling: To attend counseling by someone other than a health care provider for the employee, for the covered military member, or for the child of the covered military member as defined by the final regulations, when the need arises due to the call to active duty.
- Post-deployment activities: (1) To attend such official military events as arrival ceremonies and reintegration briefings during the 90-day period following termination of active duty status; and (2) to address issues related to the death of the covered military member.
- Additional activities: To address other events arising from the call to active duty status, provided that the employer and employee both agree that the event is a qualifying exigency and also agree to both the timing and duration of the leave.
Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule. The employer may require certification of the need for leave, which may include, among other things, a copy of the call or order to active duty upon the employee’s first request for such leave. An optional certification form for qualifying exigency leave is attached to the final regulations.
Military Caregiver Leave
As we discussed in our February 6, 2008 alert relating to military caregiver leave, eligible employees are now also entitled to up to 26 workweeks of leave during a “single 12-month period” to care for a covered servicemember with a “serious injury or illness.” A “serious injury or illness” means an injury or illness incurred by a covered servicemember in the line of duty that may make the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating. It is not the same as a “serious health condition” for other FMLA purposes.
Coverage Limitations for Military Caregiver Leave. This leave is available only to care for a current member of the armed forces, including the National Guard or reserves, “who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list.” Leave is not available to care for former members or members on the permanent disability retired list. To be entitled to this leave, the employee must be the spouse, son, daughter, parent or “next of kin” of a covered servicemember.
Length of Military Caregiver Leave. An employee is entitled to 26 workweeks of military caregiver leave in a single 12-month period. This period begins on the first day the employee takes leave to care for the covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the 12-month period for any other FMLA-qualifying reason.
Military caregiver leave is generally a one-time entitlement that does not renew each year like other types of FMLA leave. But the final regulations specify that military caregiver leave must be applied on a “per-covered-servicemember, per-injury basis.” This means an employee may be entitled to more than one period of 26 workweeks of leave, if the leave is to care for different covered servicemembers or to care for the same covered servicemember with a subsequent serious injury or illness. The employee is not entitled to an additional 26 workweeks of leave for the aggravation or complication of the initial serious injury or illness.
Each employee who takes military caregiver leave is limited to a total of 26 workweeks of all forms of FMLA leave during any single 12-month period. The sum of all types of FMLA leave, including all military caregiver leave (even for multiple service members), qualifying exigency leave, and all other FMLA leave cannot exceed 26 weeks in a single 12-month period.
Schedule and Certification. Military caregiver leave may be taken on an intermittent or reduced leave schedule if medically necessary. The employer may require the employee to obtain a certification from an authorized health care provider of the covered servicemember.
Preparing for Implementation
The revised final regulations go into effect January 16, 2009. By that date, every employer covered by the FMLA must post a notice explaining the new FMLA provisions.
Employers should also begin revising their employee handbooks as soon as possible to incorporate these new FMLA rules. If you are not able to revise your employee handbook by January 16, you should distribute to each employee a revised FMLA policy or the notice of FMLA rights attached to the regulations. Human Resources and supervisory personnel should be trained concerning the requirements of the new regulations.
Responses to leave requests submitted on or after January 16, 2009, must reflect the new FMLA procedures, including use of the new notice and certification forms.
Because the requirement of caregiver leave related to military service is already in effect, employers should follow the new caregiver leave rules now. Employers should be prepared to implement military exigency leave on January 16.
Holland & Knight lawyers are available to help you implement these complex new rules and to deal with any FMLA issues as they arise.
For more information, contact:
Todd D. Steenson
312.578.6541
todd.steenson@hklaw.com
James Michalski
213.896.2585
james.michalski@hklaw.com
toll free: 1.888.688.8500
1 To qualify for FMLA coverage, an employee must have been employed for at least 12 months (not necessarily consecutive) and have worked at least 1,250 hours in the 12 months preceding the leave request. Under the new regulations, in most cases, employment prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months. To bring the FMLA into adjustment with USERRA, the new regulations also relax the requirement for determining whether the employee has worked 1,250 hours, requiring the employee to be credited with hours he or she would have worked but for absences required to fulfill a National Guard or reserve military obligation.
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