The United States Department of Labor issued new regulations with significant impact on the current provisions of the Family and Medical Leave Act “(FMLA”). Effective January 16, 2009, the “FMLA” will impose greater obligations on both employers and employees. Though laudable in its goals, since its 1993 inception, administration of the FMLA’s provisions has been a great challenge for many employers. The new regulations are intended to address those challenges by: clarifying certain existing provisions; promoting better communications between employer and employee regarding initial requests for leave; and educating employees on providing appropriate and timely medical information needed to certify leave requests.

Spanning over 200 pages of the Federal Register, a summary of the highlights follow. With the effective date coming soon (and, on the heels of the new changes to the ADA), we recommend making plans for training all personnel involved in leave administration sooner rather than later. Your SGR employment counsel is more than happy to assist. Please do not hesitate contact us.

Eligible Employee

Employers need “look back” only 7 years to determine whether an employee with prior breaks in service meets the 12 month employment requirement for initial determination of eligibility.

Serious Health Condition (involving continuing treatment) must include:

More than three consecutive calendar days of incapacity plus two visits to a health care provider within 30 days of first day of incapacity.

Chronic Health Conditions

“Periodic visits” for chronic health conditions means visits must occur at least twice per year.

Employer Notice Requirements

Employers now have 5, rather than 2, days to notify employees of their eligibility to take FMLA leave.

New regulations extend time for employers to notify employees of leave designation from 2 to 5 days in effort to enhance communications between employer and employee.

Covered employees must post a general notice of FMLA rights even if none of their employees is eligible for FMLA.

If employer deems medical certification incomplete or insufficient, employer must return forms to employee and specify in writing what is lacking; employee then has up to 7 calendar days to cure.

Employers must provide “rights and responsibilities” notice to each employee who requests leave with information notifying employee, among other factors, that leave is FMLA-designated and counted against FMLA bank; the applicable 12 month period for entitlement; requirements of what is needed for medical certification; employee’s right to substitute paid leave, and requirements regarding premium payments during leave.

Employers must provide “designation notice” to each employee who requests leave providing such information as: whether employee will be required to submit fitness for duty certificate; amount of leave counting against employee’s FMLA entitlement, and whether employer has sufficient notice information to designate requested leave as FMLA qualifying.

Where a workforce is comprised of a significant portion of workers who are not literate in English, the general notice must be provided in a language in which the employees are literate.

Posting requirements may be satisfied through an electronic posting, as long as all employees and applicants have access to electronic information. Paper copies must be posted in locations readily visible to employees who do not have access to company computers, and to applicants who apply via non-electronic means.

Employee Notice Obligations

For non-foreseeable leave, employees must notify employer as soon as practicable still in place but, DOL intends to eliminate the 2-day rule. Instead, employer can require employees to provide notice in employer’s “usual and customary” manners for advising of need for leave, including specifying by when and to whom calls must be placed.

Employees who fail to meet employer’s usual and customary notification policy may be denied FMLA-protected leave.

For foreseeable leave, for all but most extraordinary cases, notice should be provided before start of shift.

Leave Determinations

Employers may consider medical information provided for purposes of disability or workers’ compensation leave in determining FMLA eligibility.

All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility for that leave does not change; thus, once eligibility for FMLA leave has been determined, it remains effective for 12-months if additional leave is requested for the same reason.

Light Duty

Employers cannot count light duty work against employee for job restoration purposes.

Fitness for Duty

Employers may require fitness for duty certifications with more information than a simple statement that employee may return to work. Employers may request that the certification addresses whether employee can perform essential functions of the job.

Authentication and Clarification

New regulations allow employers to contact health care providers for purposes of authentication (verifying the health care provider completed and/or authorized completion of the form) and clarification (defined as asking health care provider to understand handwriting or meaning of a response) of information provided by the employee requesting leave. Direct supervisors cannot contact health care providers; contact must come only from leave administrator, human resources, another health care provider or a management official. Employers cannot request additional information from the health care provider. Under HIPAA, employee must provide his/her consent to allow employer contact but, if employee refuses to do so, then FMLA leave may be denied.

Overtime

Required overtime that is missed due to FMLA leave now counts against the employee’s FMLA entitlement.

Substitution of Paid Leave

Employers may not be able to require simultaneous use of paid leave and other STD benefits if employee wishes to save paid leave for future use.

Intermittent or Reduced Scheduled Leave: Physical Impossibilty

Regulations provide limited exception which allows employers to designate an entire shift as FMLA leave which counts against employee’s entitlement where a physical impossibility prevents employee on reduced or intermittent leave from being put to work mid-way through a shift. This provision specifically addresses transportation industry (air and railway) and laboratory employees who are unable to enter or leave a sealed “clean room” during certain periods of time.

Recertification

New medical certifications may occur at the first absence in a new leave year and persons with chronic conditions whose duration is “unknown” or “lifetime,” regulations allow recertification every six months in conjunction with an absence.

Bonuses

Employers need not provide production bonuses or other awards to employees on FMLA leave so long as other non-FMLA leave also disqualifies employees from bonuses.

Settlement of Past FMLA Claims Now Permitted

The final rule states that the FMLA’s waiver provisions apply only to prospective FMLA rights; they do not prevent employees from settling past FMLA claims without DOL or court approval. Employers should modify general releases to include waiver of FMLA claims.

DOL PROVIDES NEW OPTIONAL FORMS

The DOL updated the optional forms provided to assist employers in administering FMLA, and it has new forms to implement the new Military Family Leave Amendments. The new list of optional FMLA forms include:

1. WH 380E: New Certification of Health Care Provider for Employee’s Serious Health Condition (Appendix B to the regulations);
2. WH 380F: New Certification of Health Care Provider for Family Member’s Serious Health Condition (Appendix B to the regulations);
3. WH Publication 1420: Notice to Employee of Rights Under FMLA (Appendix C to the regulations);
4. WH 381: Notice of Eligibility and Rights and Responsibilities (Appendix D to the regulations);
5. WH 382: Designation Notice (Appendix E to the regulations);
6. WH 384: Certification of Qualifying Exigency for Military Family Leave (Appendix G to the regulations); and
7. WH 385: Certification of Serious Injury or Illness of Covered Servicemember for Military Family Leave (Appendix H to the regulations).

The DOL created a new medical certification form for use in evaluating the medical need for leave for an employee’s own serious health condition. The DOL also created a separate medical certification form for use when employees request leave to care for a family member with a serious health condition. This form requests information on the type of care being provided by employees.

MILITARY LEAVE PROVISIONS

Qualifying Exigency (defined)

Under the final regulations, a “qualifying exigency” is defined as:

1. short notice deployment;
2. military events and related activities;
3. childcare and school activities;
4. financial and legal arrangements;
5. counseling;
6. rest and recuperation;
7. post deployment activities; and
8. additional activities.

Qualifying Exigency Leave may only be taken for qualifying exigencies arising out of the active duty status, or notification of an impending call or order to active duty status, of members of the Reserve components and the National Guard, or certain retired members of the Regular Armed Forces and retired Reserve. The Qualifying Exigency Leave entitlement does not extend to family members of the Regular Armed Forces on active duty status because members of the Regular Armed Forces do not serve under a call or order to active duty.

CAREGIVER LEAVE – “NEXT OF KIN” DEFINED

“Next of kin” means the servicemember’s nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: 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, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of Military Caregiver Leave.