Department of Labor Issues New FMLA Regulations
12/11/2008
On November 17, 2008, more than 15 years after the Family and Medical Leave Act ("FMLA") was enacted, the Department of Labor ("DOL") issued new final regulations interpreting the Act. Effective January 16, 2009, the new regulations make several significant changes to the existing regulations and provide much needed clarification for employers in a number of areas. The new regulations also cover the FMLA amendments related to service member care and other military-related exigencies.
The revised regulations were developed to improve communication among employees, employers, and healthcare providers and to make the law operate more smoothly. The final rule was developed in response to several U.S. Supreme Court and lower court cases invalidating and interpreting the regulations; passage of the military family leave provisions in the National Defense Authorization Act for 2008; the DOL's experience in administering and enforcing the FMLA; and thousands of public comments.
The following highlights the most significant changes to and clarifications of the FMLA in the revised regulations.
Eligibility
An employee must be employed for at least 12 months (not necessarily continuous) and 1,250 hours in the 12 months preceding the request for leave at a worksite that has 50 or more employees within a 75-mile radius. Telecommuters are counted as part of the 50 employees requirement.
Under the new regulations, if an employee has a break-in-service of seven years or less, the employee's service prior to the break must be counted when determining the employee's eligibility for FMLA leave. Any break-in-service over seven years need not be counted.
There are two exceptions to the seven year break-in-service rule: (1) an employee's fulfillment of National Guard or military reserve duty; or (2) a period of approved absences of unpaid leave, such as for education or parenting, where a written agreement or collective bargaining agreement exists concerning the employer's intention to rehire the employee after the break. If either of these circumstances exist, the employee's prior service must be counted when determining eligibility for FMLA leave.
An employee's time spent fulfilling National Guard or military reserve obligations must be included in the calculation of the employee's 12 months and 1,250 hours requirements.
An employee who is not eligible for FMLA protection when an approved leave started (because of the 12-month length of service requirement), may be placed on FMLA once the employee meets the 12 months of service requirement.
Serious Health Condition
The six broad definitions of serious health condition remain in the regulations. However, the DOL provides clarification and guidance as to three of the definitions.
Where a condition involves a period of incapacity of three consecutive calendar days and two or more visits to a healthcare provider, the two visits must occur in-person within 30 days of the first day of incapacity. The first visit to the healthcare provider must take place within seven days of the first day of incapacity.
Where the incapacity is three consecutive calendar days and includes a regimen of continuing treatment, the first visit to the healthcare provider must take place within seven days of the first day of incapacity.
Where the incapacity involves a chronic condition, at least two visits per year to a healthcare provider are required.
Entitlement to Leave
Minimum Leave Increments
An employer must account for intermittent or reduced leave using an increment no greater than the shortest period of time the employer uses to account for the use of other forms of leave provided that it is not greater than one hour. This allows employers to account for FMLA leave on the same basis as other employee absences.
Intermittent Leave Exception
Where it is physically impossible for an employee using intermittent leave or working on a reduced schedule to commence or end work mid-way through a shift, such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed "clean room" during a certain period of time, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee's FMLA entitlement.
Paid Leave Substitution
Employees may take, and employers may require employees to take any accrued paid vacation, personal, family or medical or sick leave as offered by the employer, concurrently with any FMLA leave. Employees must comply with the employer's paid time off policies and procedures in order to use accrued paid time off for FMLA leave.
Employers may not require substitution of paid leave where the employee is on FMLA and receiving workers' compensation benefits or other forms of disability benefits. Substitution of leave is only available where the leave would be unpaid otherwise.
Light Duty Work
An employee may decline the employer's offer of light duty if the employee is unable to return to the same or equivalent position that the employee left. The employee may continue on FMLA leave until the entitlement is exhausted.
An employee's right to job restoration is held in abeyance during the time the employee is performing light duty. Any voluntary, light-duty position or assignment does not count against an employee's FMLA leave entitlement.
Overtime
If an employee would normally be required to work overtime, but is unable to do so because of FMLA-qualifying reasons that limit the employee's ability to work overtime, the hours which the employee would have been required to work may be counted against the FMLA leave entitlement.
Voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee's FMLA leave entitlement.
Employer Notice Obligations
The DOL consolidated the employer notice obligations under one section of the regulations, provided greater guidance separating the requirements into four categories and provided sample forms for employer use.
General Notice
Employers are required to post a notice explaining the FMLA's provision and providing information concerning procedures for filing complaints of violations. Electronic posting of the notice is sufficient where applicants and employees have access to it. This notice must also be supplied to employees in employee handbooks or other written guidance to employees if such written materials exist or by distributing a copy of the notice to each new employee upon hiring. Distribution may be accomplished electronically.
Eligibility Notice
When an employee requests FMLA leave or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer has five business days from the date the employer becomes aware of the need for the leave to communicate leave eligibility to the employee.
The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible for leave, the notice must state at least one reason why the employee is not eligible. For example, the employee lacks 12 months' of service or 1,250 hours; is not employed at a worksite with 50 or more employees within 75 miles of the worksite; or has exhausted 12 weeks of leave.
Notice of Rights and Responsibilities
This separate notice must detail the specific expectations and obligations of the employee under the regulations, and explain the consequences of the failure to meet the obligations. The notice must include information that the leave will count against the employee's FMLA entitlement; whether medical certification or certification of exigent circumstances for military family leave is required; the employee's right to substitute paid leave or whether the employer will require the employee to substitute paid leave; maintenance of benefits and premium payments, if any; and key employee job restoration information. The notice must be provided each time the eligibility notice is given to the employee.
Designation Notice
When the employer has enough information to determine whether leave is being taken for a FMLA-qualifying reason, the employer must provide notice, in writing, to the employee, within five business days. The notice must specify the amount of leave designated as FMLA-qualifying, additional information needed, whether paid leave must be substituted, whether a fitness-for-duty certification is required, and a list of essential job functions.
Failure to Provide Timely or Accurate Notice
If an employer fails to comply with the notice requirements, it may be liable for compensation and benefits by reason of the violation, for actual monetary losses sustained as a direct result of the violation, and other equitable relief, including employment, reinstatement, or other relief.
Retroactive Designation
Consistent with the U.S. Supreme Court decision in Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), an employer is permitted to retroactively designate FMLA leave in some circumstances. The employer must give notice to the employee with the designation, provided that no harm or injury is caused to the employee. Alternatively, the employer and employee may mutually agree to the retroactive designation.
Employee Notice Obligations
Foreseeable Leave
Employees must provide the employer with at least 30 days' advance notice if the need for FMLA leave is foreseeable. If advance notice is not possible, notice must be given as soon as practicable. At the employer's request, the employee must provide an explanation as to why 30 days' advance notice was not practicable. As soon as practicable is defined as either the same day or the next business day from when the employee becomes aware of the need for leave.
Unforeseeable Leave
Notice for unforeseeable leave must be given as soon as practicable. The new regulations specify that "it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave." This includes calling in to a specific number or designated individual or other policy requirements the employer has.
Content of the Notice
For foreseeable leave, the employee must provide information sufficient to make the employer aware that the employee needs FMLA-qualifying leave. The notice can be written or verbal and must advise the employer of the anticipated timing and duration of the leave.
For unforeseeable leave, the employee must provide sufficient information for the employer to reasonably determine whether the FMLA will apply to the leave request.
In either case, the employee need not expressly assert or reference FMLA rights the first time FMLA-qualifying leave is requested. If the employee seeks leave due to a qualifying reason for which leave was previously provided, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave.
It is not sufficient notice for an employee to "call in sick" without providing more information to trigger the employer's obligations under FMLA.
If the employer requires additional information to determine if the leave is FMLA-qualifying, the employer must inquire further. If the employee does not respond or the employer is unable to determine if the leave qualifies under the FMLA, the employer can deny the leave.
Medical Certification
The new regulations revise the timing content, authentication and consequences of non-compliance for medical certification and re-certification.
Timing
An employer may request medical certification up to five days after the employee provides notice of the need for FMLA leave. The request for certification must be made in writing. The employee has 15 calendar days in which to provide the completed and sufficient certification unless it is not practicable to do so.
Content
The medical certification must include the healthcare provider's specialization, medical facts regarding the patient's condition, and whether intermittent or reduced schedule leave is medically necessary. The employer may not request information beyond that required in the DOL-sanctioned form.
The DOL has created separate forms for employee and family member medical certification of a serious health condition.
Clarification and Authentication
If the certification is incomplete or deficient, the employer must notify the employee in writing and give the employee seven calendar days to resubmit the certification. If the employee does not comply, FMLA leave may be denied. A certificate that is not returned constitutes a failure to provide certification.
The employer's representative (healthcare provider, human resources professional, leave administrator, or management personnel) may contact the employee's healthcare provider directly to clarify or authenticate the medical certification. The employee's direct supervisor is not permitted to contact the healthcare provider.
Annual and Re-Certifications
If the serious health condition of either the employee or family member lasts beyond the leave year, the employee may require a new certification for each subsequent year the employee takes FMLA leave.
Recertification cannot be requested more than every 30 days, unless the employee requests an extension of FMLA, the circumstances as described in the original certification have changes; or the employer receives information regarding the validity of the original certification. In any event, the employer may request recertification every 6 months.
Other Medical Data
Employers may consider information provided by employees and their healthcare providers for an Americans with Disabilities Act disability or reasonable accommodation requests or workers' compensation claims. This information may be used to evaluate medical certifications provided by the employee and in determining an employee's eligibility for FMLA leave.
Fitness for Duty Certification
The regulations permit an employer to require fitness-for-duty certifications. Where an employee is on full-time leave triggered by his or her own serious health condition, the employer must notify the employee of the fitness-for-duty requirement at the time the leave designation notice is given with the list of the employee's essential job functions. The certification must address the employee's ability to perform the essential job functions.
Where an employee is on intermittent or reduced schedule leave, the employer may not require a fitness-for-duty certification for each absence. However, the employer may request such certification once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took leave. A reasonable safety concern is one where there is a significant risk of harm to the employee or others.
At its expense, an employer may require a fitness-for-duty examination.
Perfect Attendance and Production Bonuses and Awards
Under the FMLA, employees have a right to reinstatement to the same or equivalent position with the same or equivalent salary, benefits and conditions. If an employee bonus or award is based on the achievement of specific goals, such as perfect attendance, hours worked, or products sold, the payment of the bonus or award may be denied where the employee has not met the goal due to FMLA leave. However, the employer must treat employees on non-FMLA leave the same way.
Waiver of Rights
An employee may voluntarily settle or release any retrospective FMLA claims without DOL or court approval. This waiver provision does not apply prospectively.
Military Family Leave
Included in the final regulations issued by the DOL are clarification of the military family amendments passed by Congress in January 2008. The new rule provides much-needed guidance to employers on the administration of military family leave and defines the term "military exigency."
Military Caregiver Leave
A spouse, child, parent or next of kin (defined as nearest blood relative) of a service member can take up to 26 weeks of job protected family leave in a single 12-month period to care for a service member who is on the temporary disability retired list, or has a serious injury or illness that was incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy, or is otherwise on outpatient status.
This leave may be taken in a lump sum, intermittently or on a reduced leave schedule This leave is available for any employee covered under the FMLA.
The final regulations expand the definition of "child" to include the service member's "biological, adopted, or foster child, stepchild, legal ward, or a child for whom the service member stood in loco parentis, and who is of age." This change was made to include adult children. The term "parent" specifically does not include parents-in-law. "Next-of-kin" is defined as the service member's nearest blood relative in the following order of priority: blood relatives with legal custody of the service member, brothers, sisters, grandparents, aunts, and uncles and first cousins.
Where there are family members sharing the same level of relationship with the service member, all such family members are entitled to take military caregiver leave to care for the service member. However, a service member may specifically designate a blood relative to serve as the only next of kin for purposes of military caregiver leave.
Military caregiver leave is applied on a per-covered service member basis. Thus, an eligible employee could take one than one 26-week period during his or her employment to care for different covered service members or the same service member with a subsequent qualified injury or illness. However, no more than 26 work weeks of leave may be taken in any single 12-month period. The single 12-month period commences on the first day the eligible employee takes military caregiver leave and end 12 months after that date, regardless of the method used by the employer to determine other FMLA-qualifying leave.
The employee may split the 26-week entitlement for different reasons, so long as the employee does not take more than 12 weeks of leave for his or her on serious health condition or other FMLA leave reason.
An employer may request medical certification of the military caregiver leave. Certification can be from a Department of Defense healthcare provider; Department of Veterans' Affairs healthcare provider; Department of Defense TRICARE network authorized provider; or a Department of Defense non-network TRICARE authorized private healthcare provider.
Exigency Leave
Employees are permitted to take up to 12 job-protected weeks of FMLA leave when a family service member (parent, spouse, child or next of kin) who is a member of the military reserves or National Guard and is on active federal duty or called to active federal duty by the President.
This leave is available if a qualifying exigency exists. A qualifying exigency is defined as: (1) short-notice deployment (this leave can be used for a period of seven calendar days beginning on the date the service member is notified of the deployment); (2) military events and related activities (this includes official ceremonies and family support or assistance programs); (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling, including the service member and child; (6) rest and recuperation to spend time with the service member (employees make take up to five days for each instance of rest and recuperation); (7) post-deployment activities, such as arrival ceremonies and to address issues arising from the death of the service member; (8) additional activities to address other events arising out of the service member's active duty or call to active duty.
An employee is required to give notice of the need for exigency leave and may take intermittent or reduced schedule leave. An employer may require an employee to provide a copy of the covered military member's active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty (or has been notified of an impending call or order to active duty), and the dates of the covered military member's active duty service.
Each time leave is first taken for a qualifying exigency, an employer may require an employee to provide a certification that sets forth information pertaining to the exigency. This requirement must be writing. The employee must provide the requested certification within 15 calendar days of the employer's request.
What This Means to Employers
While this Client Alert highlights the most significant changes to the FMLA regulations, the DOL's regulations and voluminous explanation require employers to change their policies and procedures by January 16, 2009. Employers should immediately review their FMLA policies, procedures and forms to comply with the new regulations. Training for all managers and supervisory personnel should also be scheduled. Finally, these new regulations may also cause a discrepancy with any applicable state laws and should be a factor in any review of your policies.
For more information about this Client Alert, please contact:
* * *
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.-
© 2008 Epstein Becker & Green, P.C.
Attorney Advertising