New Family and Medical Leave Regulations Take Effect

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By Cynthia F. Tolan

On January 16, 2009 the recent revisions and additions to the Family Medical Leave Act (FMLA) took effect. On November 17, 2008, the Department of Labor published a Final Rule (the “Rule”) on FMLA. The Rule was primarily in response to the National Defense Authorization Act, which amended FMLA and provided qualified leave opportunities for family members of military servicemembers. However, the Rule also makes several other important changes that will impact covered businesses.

The Rule, gives military families special job-protected leave rights to care for service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty.
In addition, provisions in the Rule call for increased notice obligations for employers so that employees will better understand their FMLA rights, while revising the employee notice rules to minimize workplace disruptions due to unscheduled FMLA absences. The final rule also contains technical changes that reflect decisions by the U.S. Supreme Court and lower courts.

EMPLOYER COVERAGE FOR FMLA

Applies to employers with 50 or more employees. Public agencies subject to FMLA regardless of number of employees.
Public agencies, including state, local and federal employers, and local education agencies (schools) regardless of the number of employees.

EMPLOYEE ELIGIBILITY FOR FMLA

To be eligible an employee must:

work for covered employer
have worked for the employer for a total of 12 months;
worked at least 1,250 hours over previous 12 months; and
work at a location where at least 50 employees are employed by the employer with 75 miles.

MILITARY FAMILY LEAVE ENTITLEMENTS

Military Caregiver Leave
Employers must provide FMLA leave to family members of covered military servicemembers. An employee may take up to 26 weeks of FMLA leave in a 12-month period to care for a family member who is a servicemember with a serious illness or injury incurred in the line of duty while on active duty. The leave may be taken intermittently and care extends to both psychological and physical care. This leave allowance is substantially more generous than the 12 weeks available under the FMLA for other purposes.

Qualifying Exigency Leave
An employee may also take 12 weeks of FMLA leave in a 12-month period to deal with “qualifying exigencies” that results from a member of the employee’s family, who is a National Guard or Reserve servicemember, being on or called to active duty in support of a contingency operation. The Rule defines “exigency” by referring to broad categories of events which include (1) short-notice deployment, (2) military and related events, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities not encompassed in the other categories but agreed to by employer and employee.

The regulations include two new Department of Labor (DOL) certification forms (linked below) that may be used by employees and employers in connection with this leave.

ADDITIONAL REGULATORY PROVISIONS:

Waiver of Rights: The department has clarified its longstanding position that employees may voluntarily settle their FMLA claims without first obtaining court or departmental approval. Prospective waivers of FMLA rights will continue to be prohibited.

Serious Health Condition: The Rule retains the six individual definitions of "serious health condition," and adds guidance on regulatory matters. It clarifies what is meant by “continuing treatment”. If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity and the first visit must take place within seven days of incapacity. It defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.

Light Duty: Under the Rule, time spent in "light duty" work does 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. I f an employee is voluntarily doing light duty work, he or she is not on FMLA leave. This change is a result of at least two court decisions that have held that an employee uses up his or her 12-week FMLA leave while on a "light duty" assignment.

Substitution of Paid Leave: The statute permits an employee to “substitute” paid leave for otherwise unpaid FMLA leave and also permits an employer to require this “substitution”by using any accrued paid vacation personal, family or medical sick leave, offered by the employer. The paid time “substituted” counts against the employee’s FMLA entitlement. Under the Rule all forms of paid leave are treated the same; an employee who elects to take paid leave must follow the employer’s paid leave policies with respect to use of that leave; and an employer must make employees aware of any additional procedural requirements in conjunction with the use of paid leave. This information must be provided to employees in the rights and responsibilities notice.
Perfect Attendance Awards: The Rule changes how perfect attendance awards are treated to allow employers to deny a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA leave provided that the employer treats employees taking non-FMLA leave in an identical way.

Employer Notice Obligations: The Rule consolidates all employer notice requirements into one section of the regulations to clear up some conflicting provisions and time periods. Section 825.300. Further, the Rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations. There are now three employer notices (linked below) (1) a General Notice about FMLA (via new poster, employee handbook or upon hire; (2) a new Notice of Eligibility and Rights and Responsibilities and (3) new Designation Notice. The time limit for employers to provide notice was extended from two to five business days.

The Ragsdale Decision/Penalties: The updated rule contains technical changes to be consistent with the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc., which invalidated a penalty provision of the regulations. The court ruled that the regulation's so-called "categorical" penalty for failure to appropriately designate FMLA leave was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law's remedial requirement that an employee demonstrate individual harm. The Rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

Employee Notice: Under the Rule, the employee must follow the employer's normal and customary call-in procedures, unless there are unusual circumstances. This modifies the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. In addition, the Rule highlights the existing consequences if an employee does not provide notice (i.e. grounds for delaying or denying FMLA leave).

Medical Certification Process: The old Certification of Health Provider form has been replaced by two certification forms (linked below), which differ depending on whether the serious health condition is that of the employee or a family member. Responding to concerns about medical privacy, the Rule adds a requirement that limits who may contact the health care provider on behalf of the employer. The employer’s representative must be a health care provider, human resource professional , a leave administrator, or a management official, and bans an employee's direct supervisor from making the contact. The Rule allows employers to request a new medical certification each leave year, and clarifies the time period for recertificatin of an ongoing condition. The Rule also makes two changes to the “fitness-for -duty”certification. First, the employer may require the certification to specifically address the ability to perform essential functions of the employee’s job and second, where job safety concerns exist, the employer may require a fitness-for duty certification before return from intermittent leave.

STEPS EMPLOYERS SHOULD TAKE

Begin using updated forms and posters. (Linked below.)
Revise your organization’s FMLA policy to ensure it is consistent with new regulations
Revise employee handbooks to ensure compliance with new FMLA regulations
Ensure individuals responsible for administering FMLA leave are familiar with new regulations and new types fo Military Family Leaves.

The new forms may be obtained from the Department of Labor website.
http://www.dol.gov/esa/whd/fmla/

If you would like assistance in revising your FMLA policy, complying with the new regulations or updating your employee handbook please contact one of our qualified attorneys.