Client Briefing - January 2009REVISED FMLA REGULATIONS REQUIRE NEW PRACTICESThe U.S. Department of Labor (DOL) has issued final regulations for the Family and Medical Leave Act (FMLA) that reorganize, modify and clarify existing regulations. They also address the January 2008 amendments to the FMLA addressing military family leave. These new regulations, published in November 2008, will take effect January 16, 2009. The regulations will help employers administer the FMLA more efficiently and to some extent help to minimize problems associated with intermittent leave abuse. In order to comply with the new regulations, employers must update FMLA policies and procedures and communicate more effectively with their employees. By the same token, employees must communicate a need for a leave more clearly and supply appropriate certifications in a timely manner. The following is a summary of the revisions to the existing regulations and the new regulations giving guidance on the military leave laws that were enacted earlier this year. REVISIONS TO EXISTING REGULATIONS Notices Employee Notice. Employees must give 30-days’ notice before any foreseeable leave under both the old and the new regulations. When 30-days’ notice is not foreseeable, notice must be given “as soon as practicable.” The new regulations provide that, in such a situation, it will usually be “practicable” for the employee to give notice of the leave either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours). If the employee fails to comply with an employer’s call-in procedure, FMLA leave may be delayed or denied. Also, the employee may be subject to discipline according to the employer’s policies and procedures. Further, the regulations clarify that calling in sick without providing more information is not sufficient notice to trigger protections under the Act. Employer Notice. Employers now must provide the following notices:
The revised FMLA regulations further directly address an employer’s liability for failing to designate that a leave qualifies under the FMLA, as well as how FMLA leave is applied retroactively. Consistent with the Supreme Court’s Ragsdale decision, an employee can successfully contest the employer’s attempt, after the fact, to designate prior leave as FMLA if the employee can show that she suffered an actual injury because the employer failed earlier to designate the leave as FMLA qualifying. For example, assume an employee asked for several days off for a surgery. The employer fails to designate the leave as FMLA qualifying. Later in the year, the employee gives birth to a child and asks for FMLA leave. Since the first leave was not designated as FMLA qualifying, the employer could not go back later and count the first leave as FMLA leave because the employee would be injured (since the employee’s maternity leave would be shortened by the length of the surgery leave). Revisions to Employee Eligibility Another change in the regulations affects an employee’s eligibility for FMLA. The old regulations required an employee to have worked for an employer for a total of 12 months before leave would be granted. The old regulations did not, however, require that the 12 months be served consecutively and immediately before leave was requested. This allowed for a break in the employee’s service without any limit on how far back an employer would have to look to honor an employee’s prior service. Under the revised regulations, employers do not have to go back more than seven years to determine an employee’s eligibility, in most cases, unless the break in service was due to National Guard or Reserve military service or if there was a written agreement stating the company’s intention to rehire the worker. The regulations also clarify that an employee who is not eligible for FMLA protection at the beginning of the leave may be entitled to leave once eligibility requirements have been met. Time spent on leave, including vacation or sick leave, will apply towards the 12-month requirement, if the employee remains on the employer’s payroll and is receiving other benefits. This revised regulation is contrary to several court cases, which held that an employer may determine an employee’s leave eligibility on the date the initial leave begins. Light Duty Doesn’t Count An employer may not require an FMLA-eligible employee who cannot perform the job’s essential functions to accept a light duty assignment. If, however, the employee does accept a light duty assignment, the regulations clarify that light-duty work does not count against an employee’s entitlement under the FMLA. While the employee is on light duty, that employee’s right to regain full-duty status is put on hold. Changes to Serious Health Condition The new regulations clarify the definitions of serious health condition. First, under the old regulations, a serious health condition was defined in part as three consecutive full calendar days of incapacity plus “a regiment of continuing treatment.” The new regulations provide that the regiment of treatment must include two subsequent visits to a healthcare provider that must occur within 30 days from the beginning of the employee’s incapacity. The new regulations also provide that the first healthcare visit must take place within seven days of the first day of incapacity. Second, the new regulations clarify that the employee must make at least two “periodic visits” for chronic serious health conditions each year. Medical Certifications The regulations make several significant medical certification process changes in order to give employers better medical information and make it easier for them to get medical information. The current medical certification form is replaced with two new medical certification forms. One form is to be used for employees seeking leave for their own serious health condition (Employee’s Serious Health Condition (WH-380E)), and the other is to be used for employees seeking leave to care for a family member (Family Member’s Serious Health Condition (WH-380F)). Employers who believe they need clarification on an initial medical certification may now specify in writing to the employee that the information is incomplete or insufficient. The employer must notify the employee in writing as to what additional information is needed, and give the employee seven calendar days to complete and return the form (or longer if the employee cannot comply within seven days despite good faith efforts). Although an employer still may not ask an employee’s healthcare provider to provide additional information, the employer may now directly contact an employee’s healthcare provider to authenticate and clarify information provided on a certification form. The regulation, however, specifies that only the following individuals may contact an employee’s healthcare provider on an employer’s behalf: a healthcare provider, a human resources professional, a leave administrator, or a management official. An employee’s direct supervisor is expressly prohibited from contacting the employee’s healthcare provider. Further, all of these contacts must comply with HIPAA. However, if an employee refuses to provide the employer with HIPAA authorization and fails to clarify a certification, the employer may deny FMLA leave. In another clarification, the regulations expressly state that, when making FMLA-related decisions, employers may consider certain information provided by employees and their healthcare providers in connection with disability accommodation requests and/or under workers’ compensation claims. Return to Work/Fitness for Duty Employers restoring employees to their position after FMLA leave may now require employees to provide “fitness for duty” certifications so long as they let the employee know the requirement before the leave. An employer may require that the certification specifically address the employee’s ability to perform the essential functions of the job. In order to do this, the employer must provide the employee with a list of the essential functions at the same time the employer provides the “Designation Notice.” Employers also may ask for “fitness for duty” certification for intermittent leaves once every 30 days if there are reasonable safety concerns connected with the employee’s ability to perform job duties. Increments of Leave for Intermittent Leave Under the old regulations, employers were required to use the smallest time allowed by the payroll system for counting FMLA leave. Under the revised regulation, employers may now use an increment no greater than the shortest period of time the employer uses to account for other leave (but not greater than one hour). Bonuses and Other Incentive Awards The revised regulations expressly provide that, if an employer bases incentive payment on achievement of a specified goal such as hours worked, products sold, or attendance, and an employee has not met these goals because a of FMLA leave, the employer may deny the incentive payment so long as it is also denied to other employees on equivalent leave status for a reason that does not qualify as FMLA leave. Recertification An employer may request recertification every 30 days in connection with an absence. If the certification identifies a period longer than 30 days, the employer may request recertification (related to an absence) at the end of the minimum duration or after six months, whichever is earlier. As was true under the old regulation, an employer can request recertification at any time if (1) the employee requests an extension, (2) circumstances described by the previous certification have significantly changed, or (3) the employer receives information that casts doubt on the certification. Under the revised regulations, however, the employer now can give the healthcare provider a record of the employee’s absence pattern and ask the health care provider if the condition and need for leave are consistent with the pattern of absence. When a serious health condition lasts longer than one year, employers may require employees to provide a new certification each subsequent year. Overtime The old regulations do not expressly address whether missed overtime can be counted against FMLA leave. The new regulations, however, clarify that if an employee would otherwise be required to work overtime but for FMLA leave, the overtime hours the employee was scheduled to work may be counted against the FMLA leave. REGULATIONS ADDRESSING MILITARY LEAVE The FMLA was amended on January 28, 2008 to provide for two new leave entitlements. Leave to Care for an Injured Servicemember Effective January 28, 2008, eligible employees are entitled to take up to 26 weeks of leave in a single 12-month period to care for a spouse, child, parent or next of kin who is a covered servicemember. A covered servicemember is a member of the Armed Forces, National Guard or Reserves who has a “serious health illness or injury that occurred while on active duty and that rendered the servicemember unable to perform the duties of his or her office, grade, rank or rating. Serous health illness or injury means the covered servicemember is: (1) undergoing medical treatment, recuperation, or therapy; (2) otherwise an outpatient; or (3) on the temporary disability retired list. The regulations clarify that an eligible employee may take up to 26 work weeks in a single 12-month period. The period must be measured from the first day the eligible employee takes FMLA leave to care for an injured or recovering servicemember regardless of how the employer generally calculates the 12-month period for other FMLA leave. This provision is likely to cause administrative difficulties when employers decide how much FMLA caregiver leave an employee is entitled to receive in a particular 12-month period if other FMLA leave is calculated on a calendar year bases. Further, the regulations define next of kin as the nearest blood relative other than the covered servicemember’s spouse, parent, son or daughter in the following order: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles and first cousins. According to the regulations, however, a covered servicemember may choose and specifically designate in writing another blood relative as his or her next of kin for purposes of military caregiver leave. When such a designation has been made, the designated individual will be considered the covered servicemember’s only next of kin. When no such designation is made and there is more than one family member with the same level of relationship to the covered servicemember, all family members shall be considered as the covered servicemember’s next of kin. Each individual, therefore, may take FMLA leave to provide care to the covered servicemember either consecutively or simultaneously. The employer is permitted to obtain details about the servicemember’s medical condition and the amount of time the servicemember will require care. A separate certification form for caregiver leave is available through the Department of Labor website (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)). Leave for Qualifying Exigency This leave entitles an employee to take up to 12 weeks of leave due to a “qualifying exigency” arising out of the fact that the employee’s spouse, child or parent has been called to active duty in support of a contingency operation. It does not apply to family members of those who serve in the regular armed forces. The regulations specifically define “qualifying exigencies” as:
The leave is based on a 12-month period and the employer can designate the 12-month period much as it would for employees with serious health conditions. The employer is permitted to require certification. A form is available on the Department of Labor’s website (Certification of Qualifying Exigency for Military Family Leave (WH-384)). WHAT DO EMPLOYERS NEED TO DO NOW? Employers need to quickly update their FMLA policies and obtain the new forms available at http://www.dol.gov/. If you have any questions, please feel free to contact one of our Employment & Labor Group attorneys. |
