Family Medical Leave Act –
Final Rule Implementing Amendments
By Tara B. Mulrooney, Esq.
On January 18, 2009, the Department of Labor (“DOL”) implemented the first amendments to the Family Medical Leave Act (“FMLA”) since it was enacted in 1993. Pursuant to the FMLA, covered employers must grant an eligible employee a total of twelve (12) work-weeks of unpaid leave during any twelve (12) month period for one or more of the following reasons: (1) the birth of a child and care of the newborn child of the employee; (2) placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child or parent) with a serious health condition; and (4)to take medical leave when the employee is unable to work because of a serious health condition.The purpose of the revised regulations is to provide new leave entitlements to families of the military and to help employers and employees better understand their responsibilities under the FMLA. With the goal of making the FMLA operate more smoothly, the DOL engaged in an extensive multi-year fact-finding and review process before proposing the changes to the FMLA. The final rule was developed in response to numerous factors, including: the passage of the military family leave provisions of the National Defense Authorization Act, decisions of the U.S. Supreme Court and lower court invalidating portions of the DOL's regulations, the receipt and review of public comments, and the DOL's fifteen years of experience in administering the FMLA. The changes reflected in these new regulations require that employers review their existing FMLA policies, forms and practices to ensure that they are in compliance with the new regulations. Below is a summary of the new regulatory changes:
A. ADDITIONAL BENEFITS FOR MILITARY FAMILIES
The new amendments to the FMLA create two new leave entitlements to certain family members of those in the military: military caregiver leave and qualifying exigency leave.- Military Caregiver Leave– This leave entitlement provides up to twenty-six (26) weeks of leave in a single twelve (12) month period to eligible family members of an active service member with a serious illness orinjury incurred in the line of duty. This leave is offered on a per injury/illness basis, meaning that subsequent injuries after the end of the twelve (12) month period initiate a new leave period. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.
- Qualifying Exigency Leave– Unlike the military caregiver leave, which applies to all military families, this leave entitlement applies solely to families of individuals in the National Guard and Reserves. This provision makes available the normal twelve (12) work weeks of FMLA job-protected leave to eligible employees with a covered military member serving in the National Guard or Reserves for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active status to support a contingency operation. The DOL's final rule defines a qualifying exigency by the following eight categories:(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 to by employer and employee.
B. SERIOUS HEALTH CONDITION
The new regulations keep intact the six individual definitions for serious health care conditions, however, they provide further guidance and clarification by specifying how an employee qualifies as having a serious health condition in certain situations. For example, one definition of a serious health condition involves more than three consecutive, full calendar days of incapacity plus two visits to a healthcare provider. The new regulations clarify that the two visits to a healthcare provider must occur within thirty (30) days of the beginning of the period of incapacity and the first visit must take place within seven (7) days of the first day of incapacity. A second definition of a serious health condition involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. Again, the new regulations require that the first visit to a healthcare provider take place within seven (7) days of the first day of incapacity. Thirdly, with respect to chronic serious health conditions, the new regulations define "periodic visits" as at least two visits to a healthcare providerper year.C. MEDICAL CERTIFICATION PROCESS
The new regulations recognize the passage of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of the HIPAA privacy rule to communications between employers and employees' healthcare providers. To address these medical privacy issues, the new regulations specify that the employer's representative contacting an employee's healthcare provider must be a health care provider, human resources professional, a leave administrator or a management official. In no case may an employee's direct supervisor contact the employee's healthcare provider. Further, employers may not ask health care providers for additional information beyond that required by the certification form. The final rule also improves the exchange of medical information by updating the DOL's Form WH-380 for the exchange of medical information to create separate forms for the employee and covered family members and by allowing, but not mandating, health care providers to provide a diagnosis of the patient's health condition as part of the certification. The new regulations further provide that, in the event an employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to the employee of what information is lacking and give the employee seven (7) calendar days to cure the insufficiency. In addition, whereas the old rule gave an employer only two (2) business days to request a medical certification after an employee provided notice of the need for FMLA leave, the new regulations give employers five (5) business days after the employee provides notice to request such certification. Finally, the new regulations make it clear that employers may request a new medical leave certification each leave year for medical conditions that last longer than one (1) year and permit employers to request recertification of a continuing condition every six (6) months in conjunction with an absence.D. FITNESS FOR DUTY CERTIFICATIONS
The old version of the FMLA regulations allowed employers to enforce uniformly applied policies or practices that require all similarly situated employees who take leave to provide a certification called a “fitness for duty certification” that they are able to resume work. The new regulations revise the fitness-for-duty certification process in two ways. First, an employer may now require that the certification specifically address the employee's ability to perform the essential functions of the employee's job. Second, where reasonable job safety concerns exist, an employer may require a fitness for duty certification before an employee may return to work when the employee takes intermittent leave.E. SUBSTITUTION OF PAID LEAVE
Although FMLA leave is unpaid, the statute provides that employees may take, or employers may require employees to take, any accrued vacation, personal, family, medical or sick leave concurrently with FMLA leave. The old version of the FMLA applied different procedural requirements to the use of vacation or personal leave than to medical or sick leave, and the DOL treated family leave differently than vacation or personal leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same regardless of the type of leave substituted. An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer's policy that apply to other employees for the use of such leave. Employers may waive any procedural requirements for the taking of paid leave. Further, eligible employees are always entitled to unpaid FMLA leave even if they do not meet the employer's requirements for taking paid leave.F. EMPLOYEE NOTICE OBLIGATIONS
The new regulations modify a provision of the FMLA relating to providing employers notice of the need for FMLA leave, which had been interpreted to allow some employees up to two (2) full business days after an absence to provide notice, even if they could have provided notice in a more timely manner. The new regulations provide that an employee that needs to take FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, absent unusual circumstances. It further highlights (without alteration) existing consequences for employees that fail to provide proper and timely notice of their need to take FMLA leave. In addition, under the existing FMLA an employee is required to provide at least thirty (30) days advance notice when the need for FMLA leave is foreseeable. The new regulations clarify that when an employee becomes aware of the need for FMLA leave less than thirty (30) days in advance of such leave, the employee must provide notice to his/her employer either the same day or next business day after learning of the need to take FMLA leave. Finally, when an employee is required to provide thirty (30) days notice of leave and fails to do so, the employee must explain the reasons why giving timely notice was not practicable upon theemployer's request for an explanation.G. EMPLOYER NOTICE OBLIGATIONS
The new regulations consolidate employer notice requirements into one section of the regulations and reconcile some conflicting provisions. Pursuant to the new regulations, employers are required to provide employees with the following notices: (1) a general notice about FMLA, which must be posted at the worksite (or electronically) and published in an employee handbook or given to new employees upon hire; (2) an eligibility notice, which must be sent to employee within five (5) days of the date when the employer is given notification of the request for FMLA leave; (3) a rights and responsibilities notice, which informs employees of their obligations and expectations while on FMLA leave; and (4) a designation notice, which notifies employees whether the leave requested qualifies for FMLA leave. The new regulations also extend the time for employersto provide various notices, including its response to a request for FMLA leave, from two (2) business days to five (5) business days.H. NO DEDUCTIONS FOR LIGHT DUTY
Courts interpreting the old version of the FMLA have held that employees use up their FMLA leave entitlement while on light duty. The new regulations make it clear that light duty does not count against an employee's twelve (12) week FMLA leave entitlement, even where the employee is voluntarily performing a light duty assignment. Further, an employee's right to job restoration is held in abeyance while the employee performs light duty or until the end of the applicable twelve (12) month FMLA leave year.I. PERFECT ATTENDANCE AWARDS
The new regulations change the treatment of perfect attendance awards to allow employers the right to deny a perfect attendance award to employees who do not have perfect attendance because of taking an FMLA leave, provided it treats employees taking non-FMLA leave in a similar manner.J. WAIVER OF FMLA RIGHTS
The new regulations codify the DOL's position that employees may voluntarily settle or release their FMLA claims against an employer without the approval of the DOL. This is not a change in the statute but the clarification was required in response to a recent Fourth Circuit court ruling interpreting the old regulations as prohibiting employees from either prospectively or retroactively waiving their FMLA rights. Under the new regulations, prospective waivers of FMLA rights are still prohibited. An example of a prospective waiver would be an employment agreement which required an employee to waive his/her right to take FMLA leave in the future or reduced the amount of FMLA leave allowed.K. REMOVES CATEGORICAL PENALTIES FOR EMPLOYERS
Several courts, including the Supreme Court, interpreted the previous version of the FMLA as providing for categorical penalty provisions for employers that failed to follow notification requirements under the FMLA. The new regulations remove these categorical penalty provisions and clarify that only where an individual suffers harm because an employer fails to follow the notification rules may an employer be held liable.L. BREAKS IN EMPLOYMENT
Under the FMLA, employees are eligible to take FMLA leave if they have been employed by the employer for at least twelve (12) months and have at least 1,250 hours of service in such twelve (12) month period. The new regulations clarify that the twelve (12) months of employment do not need to be consecutive. Further, any period of employment prior to a continuous break in service for seven (7) years or more, need not be counted for purposes of determining eligibility.The above article is an overview only, should not be considered legal advice and application of the FMLA will be dependent upon specific facts and circumstances. For more information, please contact Carol J. Patterson, Esq. or Tara B. Mulrooney, Esq., at 212-682-6800.
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