10 Most Important Changes to the FMLA Regulations

The U.S. Department of Labor (DOL,) formally published its long-awaited Family and Medical Leave Act (FMLA) regulations on Monday, November 17, 2008. The regulations contain hundreds of changes and become effective on January 16, 2009 – just a few days before President-Elect Barack Obama takes office. This post discusses some of the most important of these changes.

1. Military-Caregiver Leave.

Military-caregiver leave was mandated by the National Defense Authorization Act (NDAA) Eligible employees are entitled to take up to 26 weeks of leave during a “single 12-month period.” The regulations make clear that the 26 weeks will be calculated on a per servicemember, per injury basis. The 12-month period begins on first day of leave and ends 12 months later and any unused leave cannot be carried over.

The NDAA states that military-caregiver leave can be taken by spouses, children, parents or “next of kin.” Under the regulations, “next of kin” is defined as the nearest blood relative (other than spouse, child, or parent). All family members sharing the closest level of relationship (i.e. siblings) are next of kin. Importantly, the injured servicemember can designate in writing who is next of kin.

In order to take military-caregiver leave the servicemember must be receiving treatment for a “serious illness or injury” incurred in the line of duty while on active duty. The servicemember must be undergoing “medical treatment, recuperation, or therapy, is otherwise in ‘outpatient status,’ or is otherwise on the temporary disability retirement list, for a serious injury or illness.” “Servicemember” is defined as member of the Armed Forces, including a member of the National Guard or Reserves. The regulations make clear that the illness or injury need not have occurred at a time near the need for leave.

2. Active-Duty Leave (Leave because of a qualifying exigency).

The NDAA also created another form of military leave. This leave is called “active-duty leave” or “qualifying-exigency leave.” Up to 12 weeks of active duty leave can be taken by spouse, parent, child. This leave cannot be taken by a servicemember’s “next of kin.”
Active-duty leave must be as a result of qualifying exigency arising out of the fact that a member of the Reserves or National Guard is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. It does not apply to family members of Regular Armed Forces.

The regulations define seven categories of qualifying exigency: short-notice deployment; military events; child and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and a “catch-all” category of situations agreed to by the employer and employee. Details of these categories are set out in an earlier post.

3. Serious Health Condition.
The regulations also modify the definition of “serious health condition.” Period of incapacity, however, unfortunately stays at “more than three consecutive calendar days.” Incapacity must, however, be for “full” days. Moreover, the first visit to the healthcare provider must occur within seven days of start of incapacity and the visit must be in-person.

When relying on two visits to a health care provider to establish “continuing treatment,” the visits must occur within 30 days of the first day of incapacity. The second visit must be determined by the health care provider, not the employee.

Chronic conditions must involve treatment at least twice a year.

4. Light Duty.
The regulations now provide that time spent in “light duty” work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

5. Perfect Attendance Awards.
Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave – but only if the employer treats employees taking non-FMLA leave in an identical way.

6. Employer Notice Obligations.
The new regulations reorganize and modify an employer’s notifications obligations under the FMLA. The first change involves how employers must inform their employees of the FMLA. This general notice may inform employees electronically, but a paper posting must be seen by applicants. Employers without handbooks must provide general notice at time of hire. Employers with handbooks can include prototype general notice found in Appendix C of the regulations in such handbooks.

Upon a request for FMLA an employer must provide an employee with an eligibility notice. This notice addresses only whether the employee meets eligibility criteria. Notice must be supplied to employee within five business days, “absent extenuating circumstances.” The regulations provide that eligibility is determined (and notice provided) at the commencement of the first instance of leave for each FMLA-qualifying reason. If ineligible, the employer need only provide one reason for ineligibility.

If leave is designated as FMLA qualifying, an employer must provide the employee with a designation notice. A designation notice must be provided in writing and provided within five business days after employer has enough information to determine whether leave will be designated as FMLA leave. Prototype designation notice is contained in Appendix E of the regulations.

Only one notice is required for each FMLA-qualifying reason per 12-month period, regardless of whether leave is taken in a block or intermittently. Employer must notify the amount of leave counted against the employee’s entitlement. If known at time of designation it must be provided with notice. If unknown, employer must provide upon request of employee, but no more often than every 30 days.

Along with the designation notice, an employer must provide a rights and responsibilities notice. This notice must be in writing and spell out the specific expectations and obligations of employee and consequences of failure to meet these obligations. If leave has commenced, the notice must be mailed. A prototype notice of rights and responsibilities is contained in Appendix D of the regulations.

7. Employee Notice Obligations.
The new regulations also place new obligations on employees seeking FMLA leave. These obligations depend, in part, on whether the leave is “foreseeable” or “unforeseeable.”

Notice for foreseeable leave must be at least 30 days or “as soon as practicable” taking into account all the facts and circumstances. It should be the same day or the next business day after learning of need for leave. There is no more “two-day” rule allowing employees two days after the leave need occurs to inform the employer. Employees can be required to explain why it was not possible to give 30 days notice.

While an employee need not mention the FMLA or specifically request FMLA the first time leave is need, the employee must reference FMLA-qualifying reason if employer has previously provided FMLA-protected leave for this reason. This should eliminate an employers need to guess on every absence whether is for the FMLA-qualifying reason or not.

Importantly, an employer may require an employee to comply with notice and procedural requirements (including call-in procedures) for requesting leave, “absent unusual circumstances. Foreseeable FMLA leave can be delayed until 30 days after notice from employee if unusual circumstance don’t exist.

In the case of unforeseeable leave, an employee must provide notice to the employer “as soon as practicable under the facts and circumstances of the particular case.” Generally, notice should be within the time frame prescribed by employer’s usual and customary notice requirements for such leave. Employee must provide sufficient information for an employer to determine whether FMLA applies. Calling in “sick” without more explanation is not sufficient to trigger employer’s obligations.

An employee need not assert FMLA in first request for leave, but must reference FMLA-qualifying reason if employer has previously provided FMLA-protected leave for this reason. Again, an employer may require an employee to comply with notice and procedural requirements (including call-in procedures) for requesting leave, “absent unusual circumstances.” FMLA leave can be delayed for failure to comply unless policy requires notice sooner than practical.

8. Medical-Certification Process.
The new regulations make a number of changes to the medical certification process. Most importantly, it changes the time frames for requesting a certification and responding to such a request. An employer now has five days to request a certification instead of two days. The employee must then provide the requested certification within 15 days, regardless of type of leave. The employee must, however, be given additional time if he or she is using “diligent, good faith efforts” and informs employer of such efforts. Employer need not send a notice indicating that certification has not been received. An employer may get a certification annually for conditions that last longer than a year.

Employer may generally get a recertification every 30 days. If the initial certification says that an absence will last longer than 30 days, recertification can be requested when the initial certification says the absence will end or six months, whichever is shorter. Recertification can take place any time the employee requests: an extension of leave; circumstances described in initial certification have changed significantly; or the employer has information that casts doubt upon the stated reason for absence or continued validity of the certification.

The regulations also set sure a procedure for curing an incomplete certification. The employer must first state in writing what information is required to make certification complete and sufficient. The employee then has seven calendar days to cure the certification.

9. Substitution of Paid Leave.
Finally, the regulations impose new limits on the ability of employees to substitute paid leave for unpaid FMLA leave. Under the new regulations, an employee’s right to substitute paid leave will be determined by the terms and conditions of the employer’s normal leave policy, regardless of the type of leave (including vacation and personal leave). For example, if sick leave must be taken in full day increments, an employer can refuse substitution for a partial day of sick leave. Employee can, however, take the entire day and a full day will count towards his FMLA entitlement. Similarly, if personal days can be used upon two days notice, the same requirement can be imposed prior to allowance of substitution. The employee will, of course, be able to take the unpaid FMLA leave. The Employer can, and in most case probably will, waive the procedural requirements with or without the employee’s consent so that substitution can occur.

10. Legal Fixes.

The new regulations make a couple of technical legal changes. The first brings the regulations into compliance with the U.S. Supreme Court’s Ragsdale decision which dealt with the consequences of an employer’s failure to properly designate FMLA leave. In Ragsdale, the U.S. Supreme Court ruled that the so-called “categorical” penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave) contained in the DOL’s earlier regulation was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law’s remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

The regulations also remove an impediment for settling FMLA claims. The regulations clarify that employees may voluntarily settle their FMLA claims without court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.

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