Legal Bulletins

The U.S. Department of Labor (DOL) issued final regulations amending the rules governing FMLA. The amended regulations and DOL commentary, which total hundreds of pages, address the new military leave provisions added to the law in January 2008 and also change and clarify many of the existing rules. While many of the amendments are non-substantive changes, others will require employers to revise their FMLA policies and forms. The new rules go into effect on January 16, 2009. This memorandum lists what employers must do and also summarizes the most significant changes to the FMLA rules.

Employer “To Do” List For Compliance With The New FMLA Regulations

Compliance with the amended FMLA rules will require employers to revise their present FMLA policies and forms and make changes to their practices in administering the FMLA. Employers will need to:

• Revise the written FMLA policy to include the new caregiver and exigency leaves for the family and next-of-kin of military servicemembers.

• Post the revised DOL Rights and Responsibilities notice and either include the notice in the employer’s handbook or distribute it to each employee.

• Revise the existing FMLA eligibility and rights notice form.

• Adopt the newly required FMLA designation of leave notice form.

• Adopt the four new certification forms (medical for the employee, medical for the employee’s family member, exigency leave and caregiver leave for the family of servicemembers).

• If an employer requires medical certification that an employee is fit to return to duty and perform the essential functions of his/her job, a list of essential functions must be given to the employee at the time the initial designation notice is provided. Accordingly, employers should review and revise employee job descriptions or lists of essential functions.

• If an employer imposes any requirements for the use of paid leave during a period of FMLA leave, such requirements (or a reference to the applicable paid leave policy) must be included in the FMLA notices.

Significant Changes and Additions To The FMLA Rules

Eligible Employees

FMLA eligibility rules continue to require an employee to have worked for the employer for at least 12 months and worked at least 1,250 hours during the 12-month period immediately preceding the leave. The pre-amended regulations provided that the 12 months of employment did not need to be 12 consecutive months.

• The amended regulations clarify that employment prior to a break in service of 7 years or more need not be counted, unless the break was due to service in the military or was pursuant to a written agreement which reflects the employer’s intention to rehire the employee after the break in service.

• The new rules state that in counting the 1,250 hours, employers must credit employees with hours of service that would have been performed but for a period of military service.
• Employees who start an employer-approved leave after meeting the 1,250 hour requirement, but before working for 12 months, become FMLA eligible upon reaching the 12-month threshold. In this event, employers may not count the pre-FMLA leave against the employee’s 12-week FMLA entitlement (which can lead to the strange result of an employee whose leave starts before the completion of a year of service receiving a longer leave period than other employees).

Continuing Treatment

Employees may use FMLA leave for their own or a family member’s “serious health condition,” which requires either inpatient care or “continuing treatment” by a health care provider. The new regulations clarify that:

• “Continuing treatment” involves two or more visits in the first 30 days of incapacity, unless extenuating circumstances prevent such visits, or one visit and a regime of continuing treatment under the supervision of the health care provider.

• Treatment must involve an “in-person” visit to the health care provider.

• The first (or only) in-person treatment must take place within seven days of the first day of incapacity.

• Where a “chronic” condition is the basis of the serious health condition, the new rules clarify that the employee must visit a health care provider at least twice a year for treatment of the condition.

Birth Of A Child

The pre-amended rules provide that where both spouses work for the same employer they may only take a combined leave of 12 weeks after the birth or adoption of a child. The new rules provide that the combined leave restriction will not apply where leave is needed to care for a child with a serious health condition. Additionally, the new rules provide that a husband is eligible for FMLA leave to care for a pregnant spouse who is incapacitated because of pregnancy, but such leave is not available to a boyfriend or fiancé who is the father of the unborn child. The boyfriend or fiancé is entitled to FMLA leave after the birth of the baby.

Definition of a “Parent”

The new rules clear make clear that a “parent” includes an adoptive, step or foster father or mother in addition to biological parents and persons who stand in loco parentis.

Definition of “Adoption”

The new rules clarify that “adoption” means legally and permanently assuming responsibility for raising a child as one’s own and that the source of the adopted child is not a factor in determining eligibility for FMLA leave.

When Holidays Are Included In Counting Days Of FMLA Leave

The pre-amended and the new rules provide that if an employee takes a full week of leave, holidays occurring during the week count against the leave entitlement. The new rules clarify that if an employee uses FMLA leave in increments of less than one week, the holiday does not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work on the holiday.

Substitution of Paid Leave

The new rules continue the DOL’s confusing use of the term “substitution” of paid leave to refer to the practice of employees being allowed to use, or being required to use, available paid leave while absent on FMLA leave. The rules do make clear that the term “substitution” means that the employee’s available paid (and unpaid) leave and FMLA leave “run concurrently.” The new rules:

• Any type of paid leave (e.g., vacation, sick, PTO, personal, etc.) can be used for family leave or medical leave.

• Specify that the employer’s existing leave policies govern the conditions under which the use of paid leave during FMLA leave may occur. For example, if an employer’s personal leave policy requires two days’ notice, an employee seeking to use paid personal leave would have to provide two days’ notice. Similarly, if the employer’s policy permits vacation leave to be taken in no less than one day increments, the employee may only use vacation leave in one day increments.

• Require that employers notify employees of any additional requirements arising out of the employer’s leave policies when providing the initial notice of eligibility to the employee. Such notice may be provided by referencing the employers’ existing paid leave policies.

• Clarify that paid disability leave or workers compensation leave runs concurrently with FMLA leave if the employee has a serious health condition. Although neither the employee nor the employer may require the use of paid leave under those circumstances, they may agree, to the extent permitted by state law, to have paid leave supplement the workers compensation or disability payments where such payments do not provide total income replacement.

Definition of Military Exigency Leave

The new military exigency leave provisions allow the spouse, child, or parent of a member of the national guard or a reserve unit who is called to or is on active duty, up to 12 work weeks of leave during any 12-month period to deal with issues arising out of a “qualifying exigency.” (Family members of individuals in the regular armed forces are not eligible for exigency leave). Although the exigency leave provision was announced In January 2008, employers were not required to provide such leave until the effective date of the new regulations - January 16, 2009. The new regulations define an “exigency” as including the following:

• Short-notice deployment

• Military events and related activities, including official ceremonies and events sponsored by the military as well as family support or assistance programs

• Arranging for alternative childcare or provide childcare on an urgent basis

• Enrolling the child of a servicemember in a new school or arranging for a transfer

• Attending a meeting with staff of a school or daycare facility for the child of a servicemember

• Making financial or legal arrangements

• Attending counseling for oneself, a servicemember or the servicemember’s child

• Spending rest and recuperation time with a servicemember

• Attending post-deployment activities

• Additional events which arise out of the servicemember’s active duty or call to active duty, provided the employer and employee agree that such leave qualifies as an exigency.

Military Caregiver Leave

The new regulations address the new military caregiver leave provisions, which permit the spouse, child, parent or next-of-kin of a covered servicemember to take up to 26 weeks of leave in a single 12-month period to care for an injured or ill service member. Some important provisions include:

· The single 12-month period begins on the first day the eligible employee takes FMLA leave to care for the a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the 12-week FMLA leave period for other FMLA purposes.

· If less than 26 weeks of leave are used in the 12-month period, the unused balance does not carry over.

· Leave is on a per-covered-servicemember basis. In other words, an eligible employee may be entitled to take more than one 26-week leave period if the leave is to care for a different servicemember, or for the same servicemember with a subsequent injury or illness, but an employee may not take more than 26 weeks of leave within any single 12-month period.

· An employee is not entitled to more than 26 weeks of FMLA leave to care for a servicemember and all other qualifying reasons during the single 12-month period.

Employer Notice Requirements

General Notice (Poster)

Eligible employers continue to be obligated to post the DOL’s general FMLA notice (WH Revised Form 1420). In addition, the new rules require that if an employer has any FMLA-eligible employees, it must also provide such general notice to each employee by placing it in an employee handbook, or other written guidance concerning employee benefits or leave rights, or by distributing a copy to new employees upon hiring. Employers may use the DOL’s form or any document which includes all the information included in WH Revised Form 1420.

Eligibility Notice

The new rules provide that the employer must provide the employee with notice of eligibility within 5 business days (previously 2 business days) after the employee requests leave, or after the employer acquires knowledge that an employee’s leave may be for a FMLA-qualifying reason. If an employee is ineligible, the new rules provide the notice must inform the employee of at least one reason why he/she is not eligible. If an employee provides notice of a need to take leave for a different qualifying reason within the same 12-month period, a new eligibility notice is required only if the employee’s eligibility status has changed.

Rights and Responsibilities Notice

Employees must be provided with a notice of rights and responsibilities at the same time the eligibility notice is provided. The DOL has published a new suggested form which includes both notices, but employers may substitute their own forms so long as they include at least all of the information on the DOL’s form. The information is similar to that required by the pre-amended regulations.

Designation Notice

The new rules provide that employers must provide a new type of notice designating the requested leave as qualifying or not qualifying for FMLA. The designation notice must be provided within 5 days of when the employer has sufficient information to make the designation. Among other requirements, employees must be notified at the time the designation notice is provided if they will be required to present a fitness for duty certification upon return to work. In addition, if the employer will require the certification to address the employee’s ability to perform the essential functions of his/her job, that requirement must be set forth in the designation notice and the employee must be provided with a list of the essential functions at the time the designation notice is provided.

Notice of Amount of Leave Used

The new rules provide that an employer must notify an employee of the amount of leave which will be counted against the employee’s FMLA leave entitlement. If the amount of leave needed is known at the time the employer designates the leave as FMLA-qualifying, the employer must include in the designation notice the number of hours, days or weeks that will be designated as FMLA leave. In situations where the amount of leave to be taken is not known, such as when unforeseeable intermittent leave will be needed, then the employer must provide such notice upon request by the employee. Employees may make such a request no more often than once in a 30-day period, and only if leave is taken in that period. Notice of the amount of leave counted against the employee’s FMLA entitlement may be oral or in writing. If such notice is oral, it must be confirmed in writing no later than the following pay day, unless the pay day is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday. Such written notice may be in any form, including a notation on the employee’s pay stub.

Translation of Notices

The new rules provide that where an employer’s workforce has a significant portion of workers who are not literate in English, the employer must provide FMLA notices in a language in which the employees are literate.

Medical and Exigency Leave Certifications

New Forms

The DOL has issued four new leave-specific certifications forms to replace the previous one-size fits all form. The new forms address: (1) the employee’s own serious health condition; (2) a family member’s serious health condition; (3) a qualifying exigency for military family leave, and; (4) a serious injury or illness of a covered military servicemember. As with the previous certification notice, employers may use their own forms, but may not seek more information than is required by the DOL’s forms.

Time Limits

Employers must request that an employee furnish an appropriate certification within five days after the employee gives notice of the reason for leave, or, in the case of an unforeseen leave, within five days after the leave begins. The employee is required to return the completed form within 15 days after the employer’s request.

Incomplete or Insufficient Certifications

The new regulations clarify that a certification is incomplete if any applicable entry is not completed and is insufficient if it is vague, ambiguous or non-responsive. If the certification is incomplete or insufficient, the employer must give the employee written notice identifying the information necessary to make the certification complete and sufficient. The employee has seven days to cure the deficiency, unless it is not practicable to do so in such period. If the employee does not cure the deficiency, FMLA leave may be denied. As with the pre-amended rules, the employer’s notice to the employee must explain the possible consequences of the employee’s failure to provide a complete and sufficient certification.

Authentication and Clarification

The new rules remove the current restriction that an employee’s health care provider may only be contacted by a health care provider representing the employer. Instead, the employer may now contact the employee’s health care provider directly, through either a health care provider, a human resources professional, a leave administrator, or a management official. The rules specify, however, that the employee’s direct supervisor may not “under any circumstances” contact the employee’s health care provider.

The health care provider may be contacted to verify that the certification is authentic, or to clarify the handwriting or the meaning of the information on the certification. The employer may not seek information beyond that required by the certification form.

Annual Medical Certification

The new rules add that if an employee’s or covered family member’s serious health condition lasts beyond a single leave year, the employer may require the employee to provide a new medical certification each subsequent leave year.

Recertification

Generally,an employer may not seek recertification more often than every 30 days and, then, only in connection with an absence. If the certification indicates the minimum duration of the condition is more than 30 days, the employer must wait until the minimum duration expires before requesting recertification. However, the employer may request recertification every six months in connection with an absence, including intermittent absences.

An employer may request recertification in less than 30 days if: (1) the employee requests an extension of leave, (2) circumstances have changed, or (3) the employer receives information that casts doubt on the stated reason for the absence or the continuing validity of the certification. The regulations also codify the DOL’s previous opinion letter that a changed circumstance may be indicated by the employee engaging in a pattern of using unscheduled leave in conjunction with his//her scheduled days off.

Certification for an Exigency

The first time an employee requests exigency leave, the employer may require a copy of the covered military member’s active duty orders. The orders may be required only once in connection with each instance of active duty call. The employee may also be required to provide a certification of the reasons for the exigency leave.

Certification to Care for and Injured or Ill Servicemember

The DOL has created a separate certification form for leave to care for an ill or injured servicemember which seeks information specific to the requirements of that form of leave.