News / Resources

The Department of Labor (DOL) recently published its final revisions to the regulations under the federal Family and Medical Leave Act (FMLA). These final regulations, which are effective on January 16, 2009, include provisions addressing military family leave entitlements created in early 2008 by the National Defense Authorization Act (NDAA). The final regulations also update and clarify employer and employee rights and responsibilities under the FMLA. The following highlights a number of key changes and clarifications provided by the final regulations.

The DOL notices and forms referenced in this Alert, as well as the complete revised final regulations, can be found at the DOL’s Final Rule website. Please contact any member of Baker Hostetler’s Employment Team with questions.

NEW FORMS OF MILITARY FAMILY LEAVE

The NDAA amended the FMLA to provide two new leave entitlements for families of military servicemembers—Qualifying Exigency Leave and Military Caregiver Leave.

Qualifying Exigency Leave

• Eligible employees with a spouse, child, or parent on active duty or called to active duty in the National Guard or Reserves in support of a contingency operation may take up to the normal 12 weeks of leave because of any “Qualifying Exigency.”
• “Qualifying Exigencies” are: (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 agreed toby the employer and the employee.
• Note that Qualifying Exigency leave is available only to families of servicemembers in the National Guard or Reserves—not to families of servicemembers in the Regular Armed Forces.

Military Caregiver Leave

• An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember (includes a current member of the Regular Armed Forces, as well as the National Guard or Reserves) may take up to 26 weeks of leave to care for such servicemember with a serious injury or illness incurred in the line of duty on active duty.
• Unlike other forms of FMLA leave, an employer may not select the 12-month period used for computing availableMilitary Caregiver leave. Rather, the 12-month period begins on the first day the employee takes leave for this purpose and ends 12 months thereafter.
• Military Caregiver leave entitlement applies on a per-covered servicemember, per-injury basis.

The DOL has developed prototype certification forms for Qualifying Exigency and Military Caregiver leave (Forms WH-384 and WH-385).

Compliance Tip: Employers should update their FMLA policies to include military family leave entitlements. Employers also may need to develop systems for tracking leave under two different 12-month leave periods for employees using Military Caregiver leave.

EMPLOYER NOTICE OBLIGATIONS

The new regulations consolidate into one section (29 C.F.R. § 825.300) employer notice obligations under the FMLA, and impose enhanced requirements. Employers are required to provide the following notices:

• General Notice (Poster/Policy): Like the prior FMLA regulations, employers must post a general FMLA notice explaining the Act’s provisions. The DOL has prepared a prototype general FMLA notice for this purpose (WH Publication 1420). The employer also must provide the general notice to employees by including it in its employee handbook or other written guidance, or by including all of the information in the general notice in the employer’s own specific FMLA policy. If the employer does not have a handbook or written guidance on employee leave or benefits, the general notice must be given to each new employee upon hire.
• Notice of Eligibility and Rights & Responsibilities: When an employee requests FMLA leave or if the employer becomes aware the leave may be for an FMLA-qualifying reason, the employer must notify the employee within five business days whether he or she meets the FMLA statutory eligibility requirements. If the employee is not eligible, the employer must provide at least one reason for such ineligibility (e.g., employee has not worked 1250 hours in the prior 12 months). At this same time, employers must notify employees of specific expectations and obligations related to use of FMLA leave, such as whether the employer requires medical certification and arrangements for employee payments of healthcare premiums during the leave. The DOL has prepared a prototype combined form for the Eligibility and Rights & Responsibilities Notice (Form WH-381). Medical Certification forms can also be provided to employees along with the Eligibility/Rights & Responsibilities Notice.
• Designation Notice (DOL Prototype Form WH-382): Once the employer has sufficient information to determine whether the leave qualifies as FMLA (e.g., medical certification supports/does not support the request for leave), the employee must inform the employer within five business days whether the leave is being designated as FMLA leave. If so, the Designation Notice must indicate the amount of leave that will be counted against the employee’s FMLA entitlement, if determinable at that time.

Compliance Tip: Centralize your organization’s FMLA leave administration so that individuals who are familiar with the new FMLA forms and procedures are responsible for responding to leave requests.

EMPLOYEE NOTICE REQUIREMENTS

In a welcome change for employers, the new regulations provide that absent unusual circumstances, FMLA leave may be delayed or denied if an employee fails to comply with the employer’s normal notice and procedural policies for requesting leave/reporting absences, including the employer’s call-in procedures. In such instances, the employer also may take appropriate disciplinary action consistent with its internal rules.

Employees requesting leave for the first time for a particular FMLA-qualifying condition must provide sufficient information for the employer to determine whether the leave may be for FMLA reasons. As specified in the prior regulations, employees are not required to specifically mention the FMLA when informing the employer of the need for leave. However, the new regulations make clear that simply calling in “sick” is insufficient to trigger FMLA requirements.

Compliance Tip: Employers seeking to enforce their usual call-in procedures should ensure employees are aware of such procedures by including them in an employee handbook and/or by posting or distributing them. Employers also should ensure such call-in procedures are consistently enforced and applied in a non-discriminatory manner.

MEDICAL CERTIFICATIONS

The DOL has created a new medical certification form for use when an employee requests leave for his or her serious health condition (Form WH-380E) and a new separate medical certification form for use in conjunction with leave to care for an employee’s family member with a serious health condition (Form WH-380F). The substance of the information an employer is able to obtain via these new medical certification forms is basically the same as prior certification forms, although some of the instructions and questions are improved.

The most significant change to the medical certification process is that the new regulations permit employers to contact healthcare providers directly for purposes of authentication and clarification after the employer has first given the employee an opportunity to cure the deficiencies in the certification. The employer representative contacting the healthcare provider must be either a healthcare provider, a human resources professional, a leave administrator or a management official. The employer’s direct supervisor is specifically prohibited from contacting the employee’s healthcare provider.

Other changes or clarifications to the medical certification process include:

• If the employer determines the medical certification is incomplete or insufficient, the employer must specifically advise the employee in writing what additional information is needed and give the employee at least seven days to cure the deficiencies.
• The new regulations clarify that employers are permitted to require that employees furnish new annual medical certifications of health conditions lasting longer than a single leave year, such as chronic conditions.
  Employers under all circumstances may require recertification of an ongoing medical condition every six months in conjunction with an absence occasioned by that medical condition.
• An expanded “fitness-for-duty” return to work certification is permitted under the new regulations, giving employers the option of requiring that the “fitness-for-duty” specifically address whether the employee is able to perform his or her essential job functions. However, in order to require such assessment, the employer must: (1) provide the employee with a list of these essential functions no later than with the Designation Notice; and (2) specify in the Designation Notice that the “fitness-for-duty” certification must address the employee’s ability to perform these essential functions.

Compliance Tip: Adherence to consistently applied practices and procedures for obtaining and reviewing medical certifications/recertifications and for directly contacting the employee’s healthcare provider can minimize the potential for employee abuse of FMLA leave. Employers also should verify that its processes for obtaining medical information are consistent with any applicable state privacy law(s).

ATTENDANCE/AWARDS AND BONUSES

In a marked departure from the prior regulations, the new regulations permit employers to disqualify an employee from a bonus or other payment based on the achievement of a specified job-related performance goal, such as “perfect attendance” bonuses and safety awards, even where the employee has not met the goal due to FMLA absences, unless the bonus is otherwise paid to employees on an equivalent leave status for a non-FMLA reason. For example, if an employee who takes a paid vacation during the bonus period is not disqualified from receiving the bonus, an employee who uses paid vacation to cover all periods of FMLA leave during the same period also cannot be disqualified from the bonus.

Compliance Tip: Although employees absent for FMLA leave may now be put on an equal footing with employees on equivalent leave for a non-FMLA reason for purposes of attendance and similar bonuses, employers are still prohibited from using the taking of FMLA leave as a negative factor in employment actions, or from counting FMLA leave under “no fault” attendance policies.

OTHER CHANGES AND CLARIFICATIONS

Additional changes and clarifications provided by the new regulations include:

• Employee Eligibility: If an employee has a break in service of more than seven years, such prior employment generally need not be counted in determining whether the employee meets the 12-month statutory eligibility requirement for FMLA leave.
• Substitution of Paid Leave: An employer may require that employees electing to substitute paid leave for unpaid FMLA leave comply with the employer’s normal conditions and policies for use of such paid leave. The employee is still entitled to unpaid FMLA leave if he or she does not meet these conditions, and the employer may, but is not required, to waive such conditions, even in the absence of an employee request to do so.
• Light Duty: If an employee who qualifies for FMLA leave voluntarily accepts a light duty assignment, the time spent performing light duty work does not count against the employee’s 12-week FMLA entitlement.
• Intermittent/Reduced Leave/Leave Increments: The DOL did not adopt the many suggestions from employers that intermittent leave be required to be taken in larger increments (e.g., a four-hour block of time). The new regulations clarify that employers must account for FMLA leave in increments no greater than the shortest period of time the employer uses to track other forms of leave (as opposed the shortest increments tracked on the employer’s payroll system), provided the increment used for tracking FMLA leave is not greater than one hour.
• Serious Health Condition: The DOL has made three modifications to the regulatory definition of “serious health condition.” With respect to conditions that involve more than three consecutive days of incapacity plus two visits to a healthcare provider, the new regulations specify that the first visit must take place within seven days of the first day of incapacity, and that both visits must occur within 30 days of the beginning of the period of incapacity. As for conditions that involve more than three consecutive days of incapacity plus one visit to a healthcare provider and a regimen of continuing treatment, the DOL similarly requires the visit to a healthcare provider to take place within the first seven days of incapacity. Lastly, the new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a healthcare provider per year.
• Waiver of FMLA Rights: The new regulations codify the DOL’s position that employees may retroactively release FMLA claims without DOL or court supervision or approval. This means employment separation agreements may include a release of FMLA claims arising up to and including the date the agreement is signed. Prospective waivers of FMLA rights continue to be prohibited.

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