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Summary of Key Regulatory Changes to the Family and Medical Leave Act
Nov. 5, 2008
By: Justin L. Furrow
In response to the amendments to the Family and Medical Leave Act (FMLA) signed into law by President Bush in January 2008, the Department of Labor (DOL) issued new rules and regulations, effective January 16, 2009, that both interpret that new amendments and revise, explain, and clarify the DOL's previous rules.
A working knowledge of the new rules is essential, because they interpret the first-ever amendments to the FMLA, which was enacted fifteen years ago. Moreover, the new rules clarify the various court rulings and interpretations of the FMLA that have often been conflicting or confusing. Below is a summary of the key changes:
Military Family Leave: The National Defense Authorization Act (NDAA), specifically section 585(a), amended the FMLA and provided two new leave entitlements:
- Military Caregiver Leave: Eligible employees who are family members of covered service members are afforded up to 26 workweeks of leave in a “single 12-month period” to care for a covered service member with a serious illness or injury that occurred in the line of duty. This provision extends FMLA protection to family members beyond those who may take FMLA leave for other qualifying reasons. In fact, “next of kin,” which can include grandparents, aunts, uncles, first cousins, and any other relative so designated by the service member -- not just spouses, parents, and children -- are eligible to take this leave. This type of leave may be taken only once per injury; however, more than one family member may qualify for it, and each relative may take leave again if there are additional, different injuries. Nonetheless, the leave is only available while the service member remains in the military.
- Qualifying Exigency Leave: The new rules also help families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. The provision allows eligible employees with a covered military member serving in the National Guard or Reserves to use the 12 workweeks of FMLA leave for “any qualifying exigency” arising out of the covered military member’s active duty status, including active duty in support of a contingency operation. The rule defines “qualifying exigency” with reference to several broad categories for which employees can use FMLA leave: (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 not encompassed in the other categories, but agreed to by the employer and employee.
- New Certification Forms: The rule also includes two new certification forms for use by the employer and employee to comply with the certification requirements for the use of military family leave.
Additional changes in the new rules implicate issues that confront employers on a daily basis and should prompt employers to reassess their employment policies to ensure compliance:
Employee Notice: Because of the major disruption caused by lack of advance notice for unscheduled absences, the new rule provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, except in unusual circumstances. The new rule modifies the current provision, which has been construed to allow some employees to provide notice of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly.
Employer Notice Obligations: Employers are required to provide employees with a general notice about the FMLA, with a poster and either (1) an employee handbook or (2) upon hire, an FMLA eligibility notice, an FMLA rights and responsibilities notice, and an FMLA designation notice. However, to ensure a better flow of information, the new rule extends the time for employers to provide various notices from two business days to five business days.
Serious Health Condition: The new rules retain the six individual definitions of “serious health condition” but add clarification on three matters:
- One definition of “serious health condition” involves more than three consecutive, full calendar days of incapacity plus two visits to a health care provider. Due to confusion that has arisen regarding the timing of those visits to a health care provider, the new rule provides that the two visits must occur within 30 days of the beginning of the period of incapacity. However, the rules also note that the first visit to the health care provider must take place within seven days of the first day of incapacity.
- A second definition of “serious health condition” under the current regulations involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The new rules clarify that in such instances, the first visit to the health care provider must take place within seven days of the first day of incapacity.
- Thirdly, the new rules explain that “periodic visits” for chronic serious health conditions constitute at least two visits to a health care provider per year.
Medical Certification Process (Content and Clarification): The new rules incorporate concerns relating to the Health Insurance Portability and Accountability Act (HIPAA) and its applicability to employers and employees’ health care providers. The new rules include the requirement that the employer’s representative contacting an employee’s health care provider must be a (1) health care provider, (2) human resources professional, (3) a leave administrator, or (4) a management official. The new rules make clear that under no circumstances may the employee’s direct supervisor contact the health care provider. Moreover, the new rules prohibit employers from asking health care providers for any information beyond that required by the certification form. The new rules also improve the optional Form WH-380 to create separate forms for the employee and covered family members and to allow—but not require—health care providers to provide a diagnosis of the patient’s health condition as part of the certification. Moreover, the new rules specify that if an employer deems a medical certification to be incomplete or insufficient, the employer must indicate in writing what information is lacking and give the employee seven calendar days to cure the deficiency.
Medical Certification Process (Timing): The new rules state that employers may request a new medical certification each leave year for medical conditions that last longer than one year. Additionally, the new rules provide clarity concerning the time period for recertification, explaining that an employer may request recertification of an ongoing condition every six months in conjunction with an absence.
Fitness-For-Duty Certifications: The new rules make two important changes regarding fitness-for-duty certifications. First, an employer may demand that the certification specifically address the employee’s ability to perform the essential functions of his or her job. Second, if reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work from intermittent leave.
Light Duty: In contrast to several courts’ interpretations, the new rules provide that time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement. Additionally, the new rules state that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). Furthermore, the rules make clear that an employee who is voluntarily performing a light duty assignment is not on FMLA leave.
Substitution of Paid Leave: Although FMLA leave is unpaid, the statute provides that employees make take, or even be required to take, any accrued paid vacation, personal, family, medical, or sick leave offered by their employer concurrently with FMLA leave. This is referred to as the “substitution of paid leave.” Because of conflicting procedural requirements for different types of leaves, the new rules mandate that all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic “paid time off”). The rules require any employee electing to use any type of paid leave concurrently with FMLA leave to follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave. However, an employee is always entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave, and the employer is free to waive any procedural requirements for the taking of any type of paid leave.
Perfect Attendance Awards: Under the new rules, employers may deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave, provided that the employer treats employees taking non-FMLA leave the same way.
Penalties: The new rules clarify that if an employee suffers individualized harm because the employer failed to properly follow the FMLA’s notification or designation rules, the employer may be held liable.
Waiver of Rights: Because of a split among the courts on this issue, the new rules clarify that employees may voluntarily settle or release their FMLA claims without court or DOL approval. However, the new rules also reiterate that prospective waivers of FMLA rights are prohibited.