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 FMLA Alert
New regulations significantly change the way FMLA is applied
The Family and Medical Leave Act ("FMLA") was amended on January 28, 2008 to include two new types of FMLA leave. On November 17, 2008, the U.S. Department of Labor ("DOL") issued new regulations implementing the FMLA amendments, which become effective on January 16, 2009.
These new regulations will significantly change the way FMLA is applied; therefore, it is essential for all employers subject to the FMLA (those with 50 or more employees) to review and update their FMLA policies and procedures to ensure compliance with the new rules.
Changes include (click to jump to a specific topic):
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 National Defense Authorization Act
President Bush signed into law H.R. 4986, the National Defense Authorization Act ("NDAA") on January 28, 2008. The amendment creates two new types of leave under the Family Medical Leave Act and one new category of eligible employee. First, a spouse, son, daughter, parent or next of kin may take up to 26 weeks of leave in a 12-month period to care for care for family members in the Armed Forces, including the National Guard or Reserves. "Next of kin" is defined as "the nearest blood relative" of the service member, for service members who do not have a spouse, child or parent to care for them. This expanded leave under the NDAA is inclusive of, and not in addition to, the 12 weeks leave to which employees are already entitled under the FMLA.
Second, the NDAA allows employees to use their 12-week leave entitlement to address a "qualifying exigency" arising out of the employee's spouse, child or parent being on active duty or being called to active duty status in the National Guard or Reserves in support of a contingency operation.
The DOL has identified eight "qualifying exigencies": (1) short-notice deployments, defined as seven days or fewer notice; (2) military events, such as ceremonies and briefings; (3) child care and school, including time-making arrangements due to the call to duty; (4) financial and legal arrangements related to the call to duty; (5) counseling related to the call to duty; (6) rest and recuperation leave of up to five days; (7) post-deployment activities; and (8) additional activities if permitted by the employer.
The new DOL regulations renumber and reorganize certain provisions and modify some of the interpretations of the FMLA, and also address the January 2008 NDAA amendment. While there are many changes to the regulations, the most notable changes include changes to employer notice requirements and to the DOL recommended forms. The following discussion does not address every change, but rather highlights what we believe to be the most significant changes and/or clarifications. If you have any questions regarding the revised regulations and the FMLA, please contact Lisa Schonbeck. For those interested in reading the new regulations and the DOL's accompanying commentary, they are available in their entirety at http://www.dol.gov/esa/whd/fmla/finalrule.htm.
 Employee Eligibility
For an employee to be eligible for FMLA leave, he or she must have been employed by an employer (one that employs 50 or more employees) for at least 12 months and worked at least 1,250 service hours. The DOL has clarified the regulations at 29 C.F.R. § 825.110 in several respects. First, the 12 months of employment need not be consecutive, but employers do not need to count breaks in service of seven years or more, with two exceptions: (1) an employee's fulfillment of his or her military obligations, and (2) a period of approved absences or unpaid leave, such as for education or child-rearing, if there exists a written agreement or collective bargaining agreement regarding the intent to rehire the employee. Second, an employee's time away from work in order to fulfill military service obligations (National Guard or Reserve) counts toward the employee's 1,250 hour and 12-month requirements. Finally, if an employee is not eligible for FMLA protection at the beginning of his or her leave, he or she may begin FMLA once he or she has met the eligibility requirements. This clarification rejects the interpretation in several court cases holding that an employee's eligibility is determined as of the date the initial leave commences.
 Employer Notice Requirements
All employer notice requirements are now consolidated under one section, 29 C.F.R. § 825.300. Under the revised regulations, there are three employer notices, as opposed to two notices under the former regulations. The new Poster/General Notice form WH-1420 replaces the one issued in 1995 and must be included in the employee handbook or given to employees when they are hired. Electronic delivery of this form is acceptable. The DOL has issued two new forms, Notice of Eligibility & Rights and Responsibilities (form WH-381) and Designation Notice (form WH-382). These new forms must be given to employees within 5 days of an FMLA leave request, or within 5 days of knowledge of the need for leave covered by the FMLA. Forms WH-381 and WH-382 are attached to the regulations at Appendix C, D and E.
 Substituting Paid Leave
Employees are permitted to substitute, and employers are permitted to require substitution of, paid leave for otherwise unpaid FMLA leave, which counts against the employee's FMLA entitlement. Under the new regulations, employees who elect to take paid leave must follow the employer's paid leave policies. For example, if the employee only needs a half-day of leave, but the employer's policy requires paid time off to be taken in full day increments, the employee either must take a full day or take the half day as unpaid leave. In addition, employers must include any additional procedural requirements in connection with the use of paid leave in the rights and responsibilities notice.
 Medical Certification
The medical certification process has been changed significantly to allow employers to more easily obtain medical information to verify that an employee has a serious health condition. The DOL has created new forms 380-E and 380-F, which replace the current medical certification form. Form WH-380E is to be used for employees seeking leave for their own serious health condition, and Form WH-380F is to be used for employees seeking leave to care for a family member. We can provide you with these new forms or they can be found in Appendix B of the revised regulations. Under the new regulations, employers can request information regarding a health care provider's specialization and fax number, an employee or family member's diagnosis, a statement describing which essential job functions an employee cannot perform, certification that intermittent or reduced leave is medically necessary, and more detailed information on the frequency and duration of intermittent and reduced schedule leaves.
Under the new regulations, employers may contact health care providers directly in order to authenticate and/or clarify information provided on medical certification forms without an employee's permission. Only a health care provider, Human Resources professional, leave administrator or management official may contact an employee's health care provider on behalf of the employer. An employee's direct supervisor is prohibited from contacting the employee's health care provider. If the medical certification form provided by the employee is incomplete or insufficient, the employer must inform the employee, in writing, what additional information is needed and allow the employee seven calendar days to complete and return the form.
 Employee Notice
The new regulations require employees to comply with their employer's usual and customary notice and procedural requirements for requesting leave, which means that the employer may require that the employee provide written notice or notify a specific individual of the need for leave. The employer has grounds to delay or deny an employee's request for FMLA leave if the employee fails to comply with the employer's notice requirements. Reference to notice within 1 to 2 business days for unforseeable leave has been removed. Instead, an employer must notify his or her employer as soon as practicable under the facts and circumstances of the need for unforeseeable leave.
 Medical Recertification
Once an employer requests a recertification, the employer cannot require second and third opinions. Generally, employers may not request recertifications more often than every 30 days. These requests must be in connection with an absence, unless the condition lasts more than 30 days.
In the following circumstances, an employer may request recertification in less than 30 days: (1) when an employer receives information that leads the employer to doubt the continuing validity of the employoee's certification; (2) when an employee requests an extension of leave; or (3) when there is a signification change in circumstances stated in a previous certification. An employer may request recertification every six months in connection with an employee's absence as a result of intermittent or reduced leave for periods exceeding six months.
 Fitness-for-Duty Certification
An employer may require an employee to provide a medical certification of the employee's ability to return to work if the employer advised the employee of this requirement in the employer's designation of leave notice. Employers may require that the medical certification verify whether the employee can perform the essential functions of the job, if the employer advised the employee of this requirement in the Designation Notice.
 Leave to Care for an Injured Service Member
This type of leave is based on a single 12-month period, which begins on the first day of the employee's leave, and is applied on a per covered-service member, per injury basis. Employers may elect to use Form WH-385, Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave for this type of leave. This form is can be found in Appendix H of the revised regulations. Employers are permitted to obtain information regarding the servicemember's medical condition, including when the injury occurred, whether it occurred in the line of duty, and the expected duration of the injury.  Leave for a Qualifying Exigency
Leave for a qualifying exigency takes effect January 16, 2009. This type of leave is not available to relatives of military members who are in the regular armed forces. Rather, exigency leave applies to retired military members of the Regular Armed Forces, retired reserve, Ready Reserve, Select Reserve, Individual Ready Reserve, or the National Guard. Unlike leave to care for an injured service member, the 12-week leave entitlement for a qualifying exigency can be designated based on the calendar year, a fixed 12-month period, or a rolling 12-month period measured from the date of the employee's first absence. Employers may elect to use Form WH-384, Certification for Qualifying Exigency for Military Family Leave, which can be found in Appendix G of the revised regulations.
The changes we have discussed to the FMLA and the regulations will alter the way employers and employees address FMLA leave. Thus, employers should revise their handbooks and FMLA policies to reflect the above changes to the FMLA and the regulations issued by the DOL and adjust their procedures for administering FMLA leave. Likewise, employers should consider offering training to human resources members as well as supervisors and managers to advise them of the changes to the law.
For help in ensuring compliance with the new Family and Medical Leave legal requirements, please contact the Leech Tishman attorney with whom you work, or any member of our Employment practice group. |
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