The New FMLA Rules: Are You Ready?

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December 12, 2008

The United States Department of Labor (DOL) has released the final revised, and long awaited, regulations implementing the federal Family and Medical Leave Act (FMLA). The revised regulations are over 750 pages in length and adopt most of the positions the DOL outlined in the proposed revisions to the regulations issued in February 2008. A summary of the revisions is set forth below. The revised FMLA regulations become effective on January 16, 2009.
There are many good things in the revised regulations for employers. The regulations provide employers with new methods to administer FMLA leave more efficiently, including improvements in the area that employers have identified as the most troublesome – an employee’s use of intermittent leave. The regulations also address: several federal court decisions which have invalidated certain of the DOL’s regulations; issues pertaining to communications between employees, employers, and health care providers; and the responsibilities and rights of both employers and employees under the law. As part of the revised regulations, the DOL also issued new FMLA leave forms (links provided below). The most significant provisions in the revised regulations provide guidance on the military family leave entitlements that had been adopted pursuant to the National Defense Authorization Act (NDAA). The military leave provisions have been in effect but it was unclear how they were to be implemented because guidance was lacking.
What does this mean for you? A lot! As noted, the regulations become effective January 16, 2009. Employers should be preparing for the implementation of the new regulations now. Preparation includes revising or adopting: new FMLA leave application forms, FMLA policies; employer responses to an employee’s request for leave; medical certification forms; provisions in employee handbooks which address FMLA leave; and procedures for resolving FMLA disputes with an employee (now required by the revisions to the rules). Also, release of claim provisions in severance/settlement agreements should be reviewed in light of the change in the revised regulations pertaining to a waiver of FMLA claims. The revised regulations also include new notification requirements which, if not complied with, can result in the DOL finding that an employer interfered with an employee’s rights in violation of the FMLA. Therefore, preparation of a “checklist” regarding FMLA compliance when an employee requests FMLA leave will be a helpful administrative tool. This is especially important as the DOL has not changed its position that an employer’s FMLA decision makers can be held personally liable for violations. With all that must be done, this is an opportune time to have an employment law audit, including review of FMLA compliance issues, conducted of your human resource functions. Ruder Ware can assist you in doing so, follow this link for details. Also, mark your calendars! To assist you to prepare for implementation of the revised regulations, Ruder Ware will be conducting morning seminars in Wausau, Wisconsin, on January 14, 2009, and in Eau Claire, Wisconsin, on January 16, 2009. The new regulations and their impact on employers will be reviewed at these seminars with plenty of time reserved for questions. More detailed information will be provided in the near future. Set forth below is a summary of the major provisions of the revised regulations. Due to the extent of the revisions, the following does not address all of the changes. However, we can provide you with a copy of the revised regulations as issued by the DOL if you so desire. MILITARY FAMILY LEAVE
 

1. Call Up Leave. Eligible employees are entitled to take up to 12 work weeks in any 12-month period of unpaid leave because of any qualifying exigency (as defined by the DOL) arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
 

a. Call up leave is to be used for a “qualifying exigency.” A qualifying exigency has been defined by the DOL as: (1) short-notice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities. A new DOL form has been developed to allow employees to self-certify the reasons supporting the qualifying exigency.
 
b. The 12 weeks provided for these purposes does not add to the employee’s normal 12-week FMLA entitlement in a 12-month period. In essence, they provide another reason for FMLA leave.
 
c. An employee whose covered family member is a member of the regular armed forces is not eligible for qualifying exigency leave. Only an employee whose covered family member is on active duty, or called to active duty, from a reserve component (or recalled from retirement) is eligible for leave. In the case of a covered family member being recalled to service from retirement, it does not matter whether the service member retired from the regular armed forces or from a reserve component.
 
d. An employer may request the 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 called to active duty in support of a contingency operation, and the dates of active duty service, only the first time an employee requests leave for this reason. However, the employer can request new active duty orders or documentation if the need for leave arises out of different active duty or call to active duty status of the same or different covered military member.

2. Military Caregiver Leave. An employee is eligible for up to 26 weeks of leave to care for a family member who was injured or became ill in the line of duty while on active duty. The covered service member must have a serious injury or illness that renders the service member medically unfit to perform the duties of his or her office, grade, rank or rating. In order to be eligible for FMLA leave to care for a covered service member, an eligible employee must be the spouse, son, daughter, parent, or next of kin (see definition below) of the covered service member. When considering eligibility for military caregiver leave, a regular armed forces family member is eligible to the same extent as the family member in situations involving a qualifying exigency.
 

a. Length of Leave: An employee is eligible for 26 weeks of leave in each single 12-month period per military family member, per injury. However, the 26 week leave amount is limited by any normal FMLA leave taken for other qualifying reasons.
 
This means that if the employee becomes entitled to military caregiver leave under the FMLA with respect to a different family member, the employee is entitled to a new 26 work weeks of leave during a separate “single 12-month period.” Similarly, if the covered service member incurs a new illness or injury subsequent to the original one, a new 26 work week period is available to the employee. Nevertheless, the employee is limited to taking no more than 26 work weeks of leave in each single 12-month period. The revised regulations also limit leave to care for a covered service member where it is taken by both a husband and wife who are employed by the same employer. In such instances, the husband and wife would have a combined total of 26 work weeks of leave during the “single 12-month period.”
 
b. “Single 12-Month Period”: The DOL determined that the most appropriate method for establishing the “single 12-month period” for purposes of military caregiver leave is a period that commences on the date an employee first takes leave to care for a covered service member with a serious injury or illness.
 
c. Purpose: Caregiver leave may be used for a number of purposes including helping a family member who is: (1) undergoing medical treatment; (2) recuperation or therapy; (3) is outpatient at a military medical treatment facility; or (4) otherwise on temporary disability status from active duty.
 
d. Care: Leave to care for a covered service member is available as medically necessary and may be taken intermittently. As with other types of serious health conditions, the “needed to care for” standard by which an employee may take military caregiver leave includes situations in which providing psychological comfort would be beneficial where the service member is receiving in-patient or home care.

3. Other Provisions Pertaining to Military Leave.
 

a. Call Up Leave.
 

(1) Employee Notice of Qualifying Exigency Leave: Employees are not obligated to provide notice to employers when they first become aware of a covered family member’s active duty or call to active duty status. The DOL believed this was an unnecessary requirement because many employees with a covered military member may never need to use qualifying exigency leave. As a result, an employee’s obligation to provide notice of leave due to a qualifying exigency is triggered when the employee first seeks to take such leave. Where this leave is foreseeable, eligible employees must provide notice to the employer that is “reasonable and practicable,” a vague phrase that will be specific to any particular fact situation.

 
b. Caregiver Leave.
 

(1) “Next of Kin”: The DOL prioritized the nearest blood relatives who may be considered “next of kin of a covered service member” for purposes of caregiver leave. The DOL excluded the covered service member’s spouse, parent, son, or daughter, as they are already covered for FMLA caregiver leave. The regulations permit covered service members specifically to designate in writing another blood relative employee as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member’s next of kin and may take FMLA leave to provide care for the covered service member, either consecutively or simultaneously.
 
(2) Medical Certification for Military Caregiver Leave: The military family leave amendment’s definitions of “serious injury or illness” and “covered service member” contain specific components that are unique to military service members that would not be adequately addressed if the certification requirements for a serious health condition for normal FMLA leave purposes were adopted for purposes of military caregiver leave. Also, adopting the existing FMLA certification requirements for purposes of military caregiver leave would permit an employer, in some instances, to obtain medical and other information that is not relevant to support a request to take FMLA leave to care for a covered service member. However, a certification for military caregiver leave should contain certain information about the need for leave that is also required of individuals requesting normal FMLA leave to care for a family member with a serious health condition. This would include the probable duration or the injury/illness and the frequency and duration of the leave. Therefore, the revised rules create a new regulatory section (29 CFR 825.310) which sets forth separate certification requirements for military caregiver leave. The DOL also developed a new optional WH385 Form for use in obtaining medical certifications of military caregiver leave.
 
(3) No Overlapping of Service Member and Family/Medical Leaves: Leave that qualifies both as leave to care for a covered service member and leave to care for a family member with a serious health condition during the “single 12-month period” cannot be designated and counted as both leave to care for a covered service member and leave to care for a family member with a serious health condition. That is, they do not run concurrently.

NOTICE REQUIREMENTS

1. Employer Notice Requirements: Under the revised regulations, covered employers must post a general FMLA notice even if they have no FMLA-eligible employees. Employers that do not have an employee handbook or similar written materials describing benefits and leave must provide the general FMLA notice to each employee when he or she is hired. Where a workforce is comprised of a significant portion of workers who are not literate in English, the employer must provide the general notice in a language in which the employees are literate. Posting requirements may be satisfied through an electronic posting, as long as the posting otherwise meets the regulatory requirements. Electronic-only posting is permitted where 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.
2. Employer-Specific Notice Requirements: The individual notice requirements of the current regulations have been separated into two new notice requirements or phases: “Eligibility/Rights and Responsibilities” notice and “Designation” notice. Consistent with these changes, the current optional Form WH-381 (“Employer Response to Employee Request for FMLA Leave”) will be replaced with two optional forms, one to advise employees of their FMLA eligibility and rights, and the other to formally “designate” leave as FMLA leave.

 

a. When employees request FMLA leave, or when employers acquire knowledge that an employee’s leave may be for an FMLA-qualifying reason, employers must notify employees of their eligibility to take FMLA leave within five business days, absent extenuating circumstances.
 
b. Employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. All FMLA absences for the same qualifying reason are considered a single leave and the employee maintains eligibility as to that reason for leave throughout the applicable 12-month period.
 
c. If employees are eligible for FMLA leave, then at the time of their eligibility notice they also must receive the written notice of “Rights and Responsibilities” detailing the specific expectations and obligations of employees and explaining any consequences of their failure to meet these obligations. Among other things, employers must inform FMLA-eligible employees of any requirement to provide medical certification, the right to substitute paid leave, whether and how to pay premiums for continuing benefits, and job restoration rights upon expiration of FMLA leave. This notice may be accompanied by the FMLA medical certification form if the employer requests an employee to complete such a form. The notice of rights and responsibilities may be distributed electronically so long as it otherwise meets the requirements of this section. These changes eliminate the need to provide a “preliminary” or “provisional” designation of FMLA leave. Instead, once the “Eligibility Notice” has been provided, employers may delay actual designation until five business days after they receive medical certifications and any other required information.
 
d. Once an employer has obtained sufficient information to determine whether an employee’s leave will qualify as FMLA leave, the employer must notify the employee within five business days (a change from the current requirement of two business days) that the leave is designated as FMLA leave, absent extenuating circumstances. Employers may provide the “Eligibility” and “Designation” notices at the same time, if they have sufficient information to do so.
 
e. The revised regulations permit retroactive designation if the employer fails to provide timely notice and the delay does not cause the employee harm or injury. In all cases where leave would qualify as FMLA leave protection, the employee and the employer can mutually agree that the leave be retroactively designated as FMLA leave.

3. Fuller Explanation Required of Employees to Trigger FMLA Protections: Employees must explain sufficiently the reasons for leave to permit the employer to determine whether the leave qualifies as FMLA leave. Calling in “sick” or “I’m not feeling well” is not considered sufficient notice to trigger an employer’s FMLA obligations. If an employee fails to explain the reasons, leave may be denied or never extended.
4. Employees Must Specifically Reference Previously Designated FMLA Leave: When an employee seeks leave due to an FMLA-qualifying reason for which an employer has previously provided FMLA leave for the employee, the employee must specifically reference that qualifying reason for leave or the need for FMLA leave.
5. Employees Must Comply With Usual and Customary Procedures: Employers may require that employees comply with usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Requirements may include providing written notice of the reasons for leave, anticipated start and duration of the leave, or a requirement that employees contact a specific individual to request leave. Examples of “unusual circumstances” referenced in the regulations include: (a) no one answered telephone number that the employee called; (b) the company’s voice mailbox was full; (c) the employee was unable to use the telephone because he or she was seeking emergency medical treatment.

NEW FMLA FORMS  

1. Different Medical Certifications for Employee and Family Members: The DOL has created a new medical certification form for use in evaluating the medical need for leave prompted by 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 seeks information on the type of care being provided the employee.
 
2. New Forms Issued: The DOL has updated the optional forms provided to assist employers in administering FMLA. It also has developed forms to implement the new military family leave entitlements. The new list of optional FMLA forms include:
 

a. WH-380E: New Certification of Health Care Provider for Employee’s Serious Health Condition.
 
b. WH-380F: New Certification of Health Care Provider for Family Member’s Serious Health Condition.
 
c. WHD Publication 1420: Notice to Employee of Rights Under FMLA.
 
d. WH-381: Notice of Eligibility and Rights and Responsibilities.
 
e. WH-382: Designation Notice.
 
f. WHD-384: Certification of Qualifying Exigency for Military Family Leave.
 
g. WH-385: Certification of Serious Injury or Illness of Covered Service Member for Military Family Leave.

MEDICAL INFORMATION/CERTIFICATION ISSUES

1. Employers Can Consider Additional Medical Information: The revised regulations recognize an employee’s serious health condition may also be a disability within the meaning of the Americans with Disabilities Act (ADA), and may also trigger requests for paid leave or workers’ compensation benefits. In a major shift from the limited medical inquiries permitted by the prior regulations, employers may now follow procedures for requesting medical information under the ADA or paid leave or workers’ compensation programs without violating the FMLA. Moreover, employers may consider any information received pursuant to such procedures or benefit programs in determining an employee’s entitlement to FMLA leave.
 
2. Employers Provided More Time to Request Medical Certifications: The revised regulations increase the time frame for requesting medical certification from two to five days after employees give notice of need for leave or, in the case of unforeseen leave, the date the employee commences leave.
 
3. Employers Must Notify Employees of Certification Deficiencies: The revised regulations make clear that it is an employee’s responsibility to provide a complete and clear medical certification of the serious health condition entitling the employee to leave. The revised regulations require employers to notify employees in writing of the additional information that is necessary to complete an incomplete medical certification and allow employees seven calendar days to provide the additional information. If an employee fails to submit a complete and sufficient certification despite the opportunity to cure the deficiency, the employer may deny FMLA leave and absent extenuating circumstances (e.g., doctor out of country).
 
4. HIPAA Authorizations: An employer may request (but not require) that an employee authorize the employer to talk directly to the treating health care provider. In recognition of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the regulations state that if the employee or employee’s family member will not provide HIPAA authorization allowing the employer to clarify a question regarding a medical certification, and does not otherwise clarify the unclear medical certification, the employer may deny the leave.
 
5. Clarification and Authentication of Medical Certification: After providing the employee an opportunity to cure an incomplete and insufficient medical certification, the employer may contact the health care provider to verify that the information on the certification was completed or authorized by the health care provider and/or to understand the handwriting on the medical certification or to understand the meaning of the response. To make such contact, the employer must use a health care provider (e.g., a doctor), a human resources professional, a leave administrator, or a management official. Under no circumstances, however, may the employee’s direct supervisor contact the employee’s health care provider.
 
6. Employers May Require FMLA Medical Certification Even When Paid Leave is Substituted: Under current FMLA regulations, when an employer’s procedural requirements for taking paid leave are less stringent than the requirements of the FMLA, employees cannot be required to comply with higher FMLA standards. The DOL eliminated this provision. Employers may require sufficient FMLA certification in support of any request for FMLA leave for either the employee’s own or a covered family member’s serious health condition regardless of less stringent paid leave requirements.
 
7. Employers Can Require New Medical Certification Every New Leave Year: With the exception of certifications to support a request for injured service members, the revised regulations allow, at a minimum, for annual medical certifications in cases where a serious health condition extends beyond a single leave year (e.g., condition stated as indefinite in duration).
 
8. Medical Recertifications Permitted Every Six Months: The revised regulations clarify the parameters of recertifications to situations where the treating health care provider specifies a minimum duration in the certification (i.e., 60 days or lifelong). Under the prior regulations, the employer could not request recertification during that period. However, the regulations now provide that in all cases in connection with an absence, the employer can at least request recertification every six months. Therefore, if a lifelong condition is identified, the employer may only be able to request recertification every six months. The revised regulations do provide exceptions to this rule. Medical recertifications may be requested on a more frequent basis if there are changed circumstances or for other reasons outlined in the regulations.
 
9. Fitness-for-Duty Certifications: The revised rules permit employers to demand more than a “simple statement” from the employee’s doctor regarding the employee’s ability to return to work. Employers can require a more detailed explanation of the employee’s ability to safely return to work. Employers may also now ask for fitness for duty certifications for intermittent leave if reasonable safety concerns exist.

SERIOUS HEALTH CONDITON ISSUES

1. “Continuing Treatment” Definition: The DOL clarified the definition of a serious health condition involving “continuing treatment.” The revised regulations state that to qualify as a serious health condition involving continuing treatment, there must be a period of incapacity of more than three consecutive, full calendar days that also involves: (1) treatment by a health care provider (or by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or referral by, a health care provider) two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist; or (2) treatment by a health care provider, on at least one occasion, which results in a regimen of continuing treatment under the supervision of a health care provider. The revised regulations state that “treatment by a health care provider” means an in-person visit to a health care provider and, that the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.
 
2. “Chronic Condition” Definition: The revised regulations clarify the definition of a “chronic condition” as a serious health condition. The final regulations state that the condition must require periodic visits, defined as at least two times per year, for treatment by a health care provider or nurse under the direct supervision of a health care provider; must continue over an extended period of time; and may cause episodic rather than continuous periods of incapacity.
 
3. “Health Care Provider” Definition: Physician assistants who are authorized to practice under state law qualify as health care providers and all medical para-professionals who fall within the definition of “health care provider” (nurse practitioners, nurse-midwives, clinical social workers, and physician assistants) must be performing within the scope of their practice as defined under state law.

CARE ISSUES
 

1. “Prenatal Care” Definition: The employee husband of a pregnant spouse is entitled to FMLA leave to care for the pregnant spouse who has severe morning sickness or other prenatal complications (and may need physical care) and to accompany her to prenatal doctors’ appointments (and may need to be driven or need psychological care). Such leave is not available to a non-spouse father of the child (e.g., boyfriend or fiance).
 
2. “Needed to Care for” Definition: An employee may take leave to care for a family member if needed to provide physical and/or psychological care. The employee does not need to be the only individual or family member available to provide the care nor is the employee required to provide actual care (e.g., someone else is providing in-patient or home care) as long as the employee is providing at least psychological comfort and reassurance.

INTERMITTENT LEAVE, LEAVE INCREMENTS AND CALCULATIONS

1. Minimum Increment of Intermittent Leave: The final regulations clarify that an employer must account for the intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour. Contrary to the prior rules, employers are not required to account for FMLA leave in increments of six minutes or even fifteen minutes simply because their payroll systems are capable of doing so.
 
2. Exception to Minimum Increment of Intermittent Leave Rules for “Physical Impossibility”: Where the nature of the workplace makes it physically impossible for employees to start work mid-way and then work through the shift, the entire shift may be designated as FMLA leave. The DOL, however, intends this exception to be applied very narrowly and gives examples such as a flight attendant in mid-air, a work train conductor, or a laboratory technician whose workplace is inside a “clean room” that must remain sealed for a certain period of time.
 
3. Transfer to an Alternative Job While on Intermittent or Reduced Schedule Leave: A temporary transfer to an alternative job that better accommodates recurring periods of leave is permitted only if the leave is foreseeable based on planned medical treatment for the employee or a family member. An employee on unforeseeable intermittent leave cannot be transferred to an alternative job.
 
4. Calculation of Leave When Employee’s Work Schedule Varies: The revised regulations calculate an employee’s leave entitlement when an employee works a schedule that varies from week-to-week by using a weekly average over the 12 months preceding the leave period (rather than just the prior 12 weeks as specified under the current rule).
 
5. Inability to Work Overtime Protected by FMLA: The DOL has clarified that missed overtime must be counted against an employee’s FMLA leave entitlement if the employee would otherwise have been required to report for duty but for the taking of FMLA leave. This means that all of the time that an employee would have normally worked is to, and can be, charged against the employee’s FMLA leave entitlement.

MISCELLANEOUS ADDITONS AND CHANGES

1. Settlement of Past FMLA Claims: A federal court previously ruled that an employee could not waive FMLA claims even if so done pursuant to a general release of claim provision in a severance agreement. The court’s ruling was based upon a DOL regulation which so indicated. The revised regulation states that the FMLA’s no waiver provision applies only to waiver of prospective FMLA claims; they do not prevent employees from waiving past FMLA claims without DOL or court approval. Employers should modify their release of claim provisions to include waiver of past FMLA claims (if they do not already so state).
 
2. Discuss and Document FMLA Disputes: If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave, an attempt is to be made to resolve it through discussions between the employee and the employer. The discussions and decision must be documented. Employers should adopt a policy specifying these procedures.
 
3. Supplement Disability Benefits Through Use of Paid Leave: Even though provisions covering the substitution of paid leave for unpaid leave are not applicable when employees receive disability benefits during FMLA leave, the employer and employee may agree to run paid leave concurrently with FMLA leave to supplement disability benefits. This also applies to supplementing workers’ compensation benefits.
 
4. Employers May Consider FMLA Absences in Determining Bonuses and Other Incentive Rewards: The revised regulations modify the rules for perfect attendance awards to allow employers to disqualify employees from bonuses or other payments based on achievement of a specified job-related performance goal (such as attendance) where the employee has not met the goal due to FMLA leave, so long as this is done in a nondiscriminatory manner (e.g., applies not only to FMLA absences).
 
5. Time Spent Performing Light Duty Does Not Count Toward FMLA Entitlement: The final FMLA regulations state that an employee’s right to FMLA leave and job restoration are not affected by accepting voluntary light duty assignments. Thus, the employee’s right to job restoration is essentially “on hold” during the period of time an employee performs a light duty assignment. At the conclusion of the voluntary light duty assignment, the employee has the right to be restored to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement.
 
6. Holidays: An employer may count holidays as FMLA leave if the employee is on FMLA leave the entire week in which the holiday falls. If the employee takes FMLA leave for less than a full work week in which a holiday falls, the holiday does not count as FMLA leave.
 
7. Increased Damages Available for Harm Caused by Interference with FMLA Rights: The revised FMLA regulations provide a remedy for interfering with an employee’s rights under the FMLA. Employers may be liable “for compensation and benefits lost by re

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