Delaware Employment Law Blog

Maury Povich has made a good living hosting a TV show which often focuses on determining paternity. The show follows a familiar pattern. A woman comes on and declares that a man, waiting back stage, is the father of her baby. The child is then shown on the screen for the audience in the studio and at home to adore. The putative father is then marched onstage to loud boos.

He, of course, vociferously denies paternity using a series of arguments used by men through the ages like “the kid don’t look like me” or “she slept with lots of other men.” The man and woman then go back and forth for a bit. No physical violence. This isn’t Jerry Springer. The crowd loves it anyway.

Maury then produces a manilla envelope with the result of a DNA test. After the requisite commercial break, Maury dramatically reads the results of the test. The studio audience erupts. If the man is the father, he pledges to live up to his obligations. Sure, buddy. If he is not, the mother runs off the stage to his taunts. The whole sad affair is wrapped up in ten minutes.

Determining parenthood often critical under the FMLA. The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, “[b]ecause of the birth of a son or daughter”, “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and “to care for a son or daughter with a serious health condition.”  See 29 U.S.C. 2612(a)(1)(A)-(C).

Fatherhood, or motherhood, for that matter, is not always clear under the Family and Medical Leave Act (“FMLA”). While in Maury’s world, a child has only one father, under the FMLA there can be many. A parent is defined as “a biological, adoptive, step or foster father or mother or any other individual who stood in loco parentis” to a child.

While Maury uses a DNA test to determine a biological father, it is not necessary for FMLA purposes. Under the FMLA, a birth certificate will suffice. Similarly, court documents will work for adoptions and foster care. But what about “in loco parentis”? Now that’s a tough one. The U.S. Department of Labor recently issued an Administrator’s Interpretation that may make it even tougher.

The FMLA regulations state that “[p]ersons who are ‘in loco parentis’ include those employees with day-to-day responsibilities to care for and financially support a child….” The Interpretation, however, sees this definition as providing only an example of an “in loco parentis” arrangement, not establishing the requirements. Despite the use of word “and” in the regulation, the Interpretation states that an employee need not establish both day-to-day care and financial support. Rather, it sufficient for an employee to provide only day-to-day care. The Interpretation also gives a series of other scenarios which may qualify for in loco parentis status. For example, an employee who will be raising an adopted child with a same sex partner, but who does not have a legal relationship with the child, will still be eligible for FMLA. Good luck confirming these relationships.

The Interpretation concludes by stating the determining whether an employee stands in loco parentis to a child “will depend on the particular facts.” Unfortunately, those particular facts may be hard for an employer to determine or confirm.

The answer to this question is critical. If the answer is “yes,” the employer must comply with the myriad of obligations imposed by the FMLA. The answer is “yes” if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year.[1]  

The determination of whether an organization meets this 50-employee requirement is not an easy one, though, especially for employers with a high turn-over rate and employers who utilize temporary or seasonal help. Here’s a short breakdown of the analysis to help you determine if your organization is a “covered employer” for purposes of the FMLA.

• Start with the correct time period. You should look to the payroll records of the current and preceding calendar year. (For example, if we were to perform the calculation today, we would need to look at the records for 2008 and 2009).
• For this period, determine how many employees the organization had who were employed for a total of 20 or more weeks. The week is based on a calendar workweek. Workweeks need not be consecutive.
• From this number, remove employees who were subject to layoff, whether temporary, indefinite, or long-term.
• Do not remove an employee who was on leave of absence or suspension but who has a reasonable expectation of returning to active employment.
• Remove any employee working at a location outside of 75 miles from the location for which the determination is being made.

Once a private employer satisfies the 50-employee and 20-week threshold, the employer remains covered until it no longer has 50 employees during 20 workweeks in both the current and preceding calendar years.

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[1] Joint employers and successors in interest of covered employers, public agencies, and private elementary and secondary schools are also covered.

See other posts on the FMLA's requirements and prohibitions:

New FMLA Regulations Restrict Substitution of Paid Leave for FMLA

So You Thought You Understood the Final FMLA Regs?

Employer Notice Requirements Under the Final FMLA Regulations

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

10 Most Important Changes to the FMLA Regulations

The substitution of paid leave for unpaid FMLA leave occurs often.  A employee eligible for FMLA leave will substitute accrued vacation, sick, medical, or other similar types of paid leave so that he avoids a loss of pay during the leave.  In most circumstances, employers also benefit because, when substitution occurs, the time counts against both the employee’s FMLA and paid time off entitlements.

Under the prior FMLA regulations, substitution of paid leave could be abused.  For example,  vacation leave was required to be substituted for any FMLA leave.  Common restrictions imposed on the use of vacation such as advanced notice or requiring it to be used in minimum blocks of time could not be imposed to prevent substitution.  This ready availability of paid leave surely was very tempting to some employees that could not otherwise use such time.

The new FMLA regulations, however, give employers the ability to reduce abuse.  Under the new 29 C.F.R. § 207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave.  Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period.

The consequences of the new rule are obvious.  Employees might now be required to take unpaid FMLA leave rather than substitute paid leave.  As a result, the temptation to use the FMLA to obtain paid leave that they otherwise would not be entitled is eliminated.

When the FMLA final regulations were promulgated in January, employers (and their lawyers) around the country got to work.  We poured over the two hundred pages of tiny print, deciphering the requirements and determining what had and had not changed.  It was a lot to review and it's a lot to understand.  I've taught something around 15 seminars on the new regs since they were published and I still need to reference the regulations when presented with unusual questions or factual scenarios.  

So I know it can't be easy for employers to manage the complex ins and outs of the new law.  Well, don't get too comfortable with the regulations--more change may be on its way.

Last month, a new bill was introduced (H.R. 2161), which, according to its sponsor, is intended to "restore the [FMLA] to its original intent and spirit."  The bill, To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act, would repeal some sections of the regs and modify others.  For a comprehensive review of the most important changes, jump over to The FMLA Blog. 

But, for those who are more interested in the summary, here it is:  the bill would be bad for employers. The bill would eliminate the (few) changes in the latest regs that are favorable to employers. 

Employer Notice Requirements Under the Final FMLA Regulations

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

10 Most Important Changes to the FMLA Regulations

The FMLA has undergone major change in the past 18 months. First, there was the National Defense Authorization Act (NDAA), an amendment to the FMLA, which took effect in January 2008.  Then, in February, the U.S. Department of Labor (DOL), released its proposed regulations for public comment.  The comments were collected and the FMLA's final regulations were published in November.  Then, on January 16, 2009, the final regulations took effect.  And, since then, employers have been operating under this new--and substantially different--set of regulations.  Whether or not they realize that there's a new set of rules in town is a different question.

For those of you who are aware that the FMLA's final regulations are now in place, you also probably know that the regs impose a set of new responsibilities on employers. I've spoken to Human Resource professionals about the final regulations several times since they were first promulgated, including at our annual employment law seminar last week, where William W. Bowser and I presented an FMLA update twice in the same day to accommodate the large number of attendees.  A single blog post is not the best way to share the many ins and outs of the new law. But I can address one topic that I consider to be critical for employers to understand: FMLA Notices.

The final FMLA regs contain substantial changes in the conditions in which an employer can and must give certain FMLA-related notices to employees.  Each of these notices have a great number of complexities that employers are best advised to come to terms with now.  The new regulations are unforgiving when it comes to employer delays.  

Here's the run-down for what employers must know about the required FMLA notices. 

General Notice 

Under the new regulations, this includes the traditional posting requirement.  If the employer has a written policy on leave and benefits or an employee handbook that includes such a policy, the same posting notice must be included.  Employers without a handbook should call me.  Then they should start providing each new employee with the general notice (posting) at the time of hire.

A few points of interest with respect to the General Notice. First, if a significant portion of your workforce is not English literate, the posting must be translated into their language(s).  Second, an employer who is FMLA covered must post the General Notice at all work sites, regardless of whether a work site has any FMLA-eligible employees.

Eligibility Notice and Rights and Responsibilities Notice

Once an employee requests leave, or the employer becomes aware that an employee may qualify for FMLA-protected leave, the employer must give two more notices:  the Eligibility Notice and the Rights & Responsibilities Notice.  Eligibility Notice must be given within 5 business days and must tell the employee whether or not he or she is eligible for FMLA.  If the employee is not eligible, the Notice must provide at least one reason why not.  If the employee has another request for leave in the same 12-month period, the Eligibility Notice need not be issued again unless the employee's eligibility status has changed.

At the same time, the employer must inform the employee of his rights and responsibilities as provided by the FMLA.  Specifically, the notice must state that the leave may be designated as and deducted from any existing FMLA entitlement and it must identify the 12-month period being used when making an FMLA determination.  Most critical, though, is the requirement that the employee be notified of his responsibilities, if any, with respect to providing a medical certification. 

If the employee will be required to provide a medical certification of his or his family member's serious health condition or, in the case of military family leave, certification of a qualifying exigency, he must be informed of this requirement now.  The DOL's certification form can (should) be included with the rights and responsibilities notice. 

Designation Notice

If the employee does not return a medical certification, the employer has no further obligations with respect to notices.  But, if the employee does come back with the certification as requested, the employer's final notice requirement is triggered.  Once the employer has sufficient information to make a determination about whether FMLA will apply to the leave, it must notify the employee of its designation. 

If the leave will not be designated as FMLA, the notice must tell the employee why the leave is not deemed qualifying.  If the leave will be designated, the employee must be notified of the number of designated hours, days, or weeks. 

Key at this stage is the requirement that the notice include information about a fitness-for-duty certification requirement if the employer has one.  And a list of essential job duties if the FFD must address the employee's ability to perform essential job functions. Just to recap this critical requirement, let me point out that, along with a designation notice, the employer must inform the employee that a FFD will be required or waive the ability to require it.  And, to top it off, if you fail to include a list of essential job duties, the FFD will be based on the employee's own description of his or her job duties.  Not ideal.

Summary

In case you missed it, here's what you need to know when it comes to FMLA leave notices.  Using the handy-dandy image, above, here's the timeline.  First, you've got to comply with the General Notice requirements--in the form of a posting and policy.  Second, once the employee gives notice of the need for FMLA leave (or you learn of the need otherwise), you must give an Eligibility Notice, informing the employee of his or her eligibility status.  At the same time, you must provide the Rights & Responsibilities Notice, including a notice to the employee that he must provide a certification if one is going to be required.  Assuming the employee returns the required certification, then you must designate the leave as FMLA, non-FMLA, or inform the employee that you do not have sufficient information to make the designation.  And, if you will require the employee to provide a fitness-for-duty certification, you must put him on notice now. 

These now-or-never requirements of the FMLA final regulations require employers to do some real advance planning.  Employers must determine when they will require an employee to provide a certification and under what conditions a fitness-for-duty certification will be necessary.  As if that's not enough work to do, you must also have the essential job functions prepared and ready to go when you send out the FFD information.  That's a lot of planning so if you haven't gotten started, there's no time like the present.

[Update to  January 30: FMLA Briefings] 

As promised, we've uploaded our slides from the presentation.  And, while we were at it, we also downloaded the DDOL's regulations and added them to the PDF so you have all of the FMLA resources in one place. 

The better-looking version requires Adobe Reader 9, which is a free download that doesn't require administrative rights.  If you're using an older version, switch now, you'll love it. 

If you can't, though,  use Adobe Reader 9, download this copy of the materials, which will display fine in any Reader version. 

Thank you again for attending and we'll look forward to seeing you in April at our annual employment law seminar.

Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month's Delaware Today magazine.  Young Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation's adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur--a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave--the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act ("PDA"), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It's likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

The FMLA is complicated for employers to apply.  One reason for this is that most every "definition" in the statute contains another word that has its own definition.  For example, we know that FMLA leave may be taken to care for the serious medical condition of a family member.  We know that "family member" includes a child of the employee.  But who is a "child" under the statute?  Here's one twist on that question.

Q:  An employee has requested to take intermittent FMLA leave to care for her adult son, who has long-term emotional problems, whenever there is a “situation where she is needed.”

There are three questions that the employer would need to have answered before being able to determine whether the requested leave is FMLA qualified. First, the employer must determine if the adult son is a covered family member, which requires a determination of whether he is “incapable of self-care.” If he requires assistance to engage in the activities of daily living, the second question is whether this inability is a result of a chronic serious medical condition. Third, the employer would need a further description of the “situations” for which the employee would require leave.

Adult Children and the FMLA

Adult children can qualify as a “family member” for purposes of the FMLA only if the individual is incapable of self-care because of a mental or physical disability. “Incapable of self care” means that the individual requires active assistance or supervision to provide daily self-care in at least three “activities of daily living,” such as bathing, dressing, eating, cooking, cleaning, shopping, or taking public transportation.

Emotional Problems as a Serious Medical Condition

The statement that the employee’s son has “emotional problems” is insufficient to qualify him as having a serious medical condition, as is required for FMLA protection. A health-care provider, such as a psychologist, should determine whether the son’s emotional problems constitute a serious medical condition as that term is defined by the FMLA.

“Situations” as Reason for Leave

The FMLA broadly defines the times that an eligible employee can take leave. Simply, the employee must only be taking leave to provide care for or provide psychological comfort to an immediate family member with a serious health condition. If, in the first question, we determined that the adult son qualifies as an “immediate family member” and, in the second question, determined that his “emotional problems” qualify as a serious health condition, the final question is whether the employee is requesting leave to provide care or psychological comfort for her son. If she is taking him to medical appointments or simply caring for him while he is not well, this time is protected by the FMLA. But if she was requesting leave to take him to have his picture taken for the annual holiday card, or to a friend’s house to visit, these would not qualify as protected activities and would not constitute FMLA-eligible leave.

What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?

Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.

Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.

The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an employee’s total hours worked.

New FMLA regulations go into effect on January 16, 2009.  On January 13, 2009, Delaware attorneys William W. Bowser and Scott A. Holt will be speaking to Delaware employers about how to comply with the new regs.  Delaware Society of Human Resources will host the event at Cavalier Country Club, beginning at 5:30 p.m.

For those Delaware employers who are not members of DESHRM, the Employment Law Department will host a breakfast briefing at the end of the month on the new regulations, as well.  More information on the details of that seminar will follow.  Until then, you can get a head start on the topic by checking out these earlier posts:

• Department of Labor Issues Long-Awaited FMLA Regulations

• New FMLA Regulations Define Scope of Active-Duty Leave

• New FMLA Regulations Explain Military-Caregiver Leave

• 10 Most Important Changes to the FMLA Regulations

The new FMLA regulations go into effect on January 16, 2009.  To help Delaware employers prepare for these significant changes, Young Conaway's Employment Law Group will host a free breakfast briefing on the new regulations.  The two-hour seminar will be held at our Wilmington, Delaware offices on January 30, 2009, from 9 - 11 a.m.  Delaware employment law attorneys William W. Bowser, Scott A. Holt, and Margaret (Molly) DiBianca will discuss the following:

• New "military caregiver leave" permitting family members of wounded military personnel to take up to six months of unpaid leave in a 12-month period to care for their relatives during the recovery process
• New "qualifying exigency leave" permitting families of National Guard members and the reserves to use up to 12 weeks of leave to manage the members’ affairs while they are on active duty
• New definitions of a “serious health condition” 
• New regulations on  “chronic serious health condition”
• Prohibitions on direct supervisors contacting the employee’s health care provider about a medical certification
• Expanding the notice requirements for employers and employees
• Explaining how employers may settle FMLA claims
• Stopping employers from charging FMLA time to employees who are on light duty

Due to the expected popularity of this seminar and the limited number of seats, employers are asked to send no more than two representatives.  Registration is open until all seats are filled or until January 23, 2009, whichever is first.  Registration forms can be found on the Young Conaway website.

An employee requested FMLA leave, which she was provisionally granted. She took the time off but, despite requests by HR, has failed to submit a completed medical certification form. It has been more than 15 days since the form was first requested.

Can we retroactively withdrawal the provisional approval? Do we need to give the employee some kind of warning about the expiration of the 15 days?

The current regulations provide that, when the need for leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins. But this doesn’t sound like the case, here. If this is not possible, the employee must provide the certification to the employer.

The employer can set a deadline so long as it is not less than 15 days. If the employee here was given at least 15 days to provide the certification and was notified of the need to do so but has failed to comply, the leave need not be designated as FMLA-eligible. Many employers, though, will provide notice in writing to the employee of the missed deadline and offer another 7 or 14 calendar days in which to comply. This is a safeguard but is not required.

If the employee returns the certification after the deadline but has made good-faith efforts to do so within the mandated timeframe and was prevented only by circumstances beyond her control, the employer is best advised to accept the certification as timely.

The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

But there is another level to this question. If the employee is on disability under the company’s disability-insurance plan, his serious medical condition may very well qualify as a disability, as well, under the ADA. The ADA requires that employers make “reasonable accommodations” for qualified employees. The U.S. Equal Employment Opportunity Commission (EEOC), and the courts have taken the position that an accommodation may take the form of a modified work schedule, flexible leave policy, or even just additional time off.

Whenever faced with a decision about whether to terminate an employee who is about to exhaust all of his FMLA time but is not expected to return to work, be sure to consider whether the ADA is applicable and what is required if it is.

For more information on legal compliance with the FMLA and ADA, see the posts in the HR Summer School category, which covers these topics in a comprehensive and no-nonsense style.

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.

The Family and Medical Leave Act (FMLA), will be the talk of the HR world next week when the U.S. Department of Labor (DOL), formally issues its new revised final regulations. The new regulations finally define the scope of two new types of FMLA leave that were created by the National Defense Authorization Act for FY 2008 (NDAA). These two new kinds of leave, known as active-duty leave and military-caregiver leave, provide FMLA leave for the families of servicemembers called to active duty or injured in the line of duty. In an earlier post, (New FMLA Regulations Define Scope of Active-Duty Leave), we addressed the regulations dealing with active-duty leave.  Now we examine the regulations on military-caregiver leave.

The NDAA provides that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a [single] 12-month period to care for the servicemember.”   This type of leave is different from other forms of FMLA leave, including Active-Duty leave, in that it provides for up to 26 weeks of leave rather than 12 weeks.  In addition, the NDAA also provides that a covered servicemember’s “next of kin” is eligible to take FMLA leave to care for the servicemember.

Defining "Next of Kin"

The NDAA left several questions unanswered. The first group of questions involved the phrase "next of kin."  Just who is a "next of kin"?  Is it just one person or a group of relatives? Can the employee designate his or her "next of kin"?  Can the employer require an employee to prove his or relation to the servicemember? The new regulations address all of these questions.

The final regulations define a servicemember’s “next of kin” as the servicemember’s nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military-caregiver leave under FMLA, in which case the designated individual shall be deemed to be the covered servicemember’s next of kin.

The final regulations also provide that all family members sharing the closest level of familial relationship to the servicemember shall be considered the servicemember’s next of kin, unless the servicemember has specifically designated an individual as his or her next of kin for military-caregiver leave purposes. In the absence of a designation, where a servicemember has three siblings, all three siblings will be considered the servicemember’s next of kin.

Finally, the regulations permit an employer to confirm an employee’s status as a covered servicemember’s next of kin.

How Much Leave Is Available?

The next set of questions left open by the NDAA involved the amount of military-caregiver leave that could be taken by an employee. Is this type of leave a one-time entitlement?  Can an employee take more than one period of military caregiver leave to care for multiple covered servicemembers with a serious injury or illness, or the same covered servicemember with multiple serious injuries or illnesses? How should the “single 12-month period” should be determined?

The final rule explains that an eligible employee may take no more than 26 workweeks of military caregiver leave in any “single 12-month period.” This section also provides that the 26-workweek entitlement is to be applied as a per servicemember, per-injury entitlement, meaning that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness. The final rule also provides that the “single 12-month period” begins on the first day the eligible employee takes military-caregiver leave and ends 12 months after that date.

The Family and Medical Leave Act (FMLA), will be clarified when the U.S. Department of Labor (DOL), formally publishes new regulations on Monday, November 17, 2008. Among the many changes contained in the regulations, are provisions dealing with the recently enacted leave benefits for family members of both seriously injured or ill service members and National Guard and Reserve members who have been called to service.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA was an amendment to the Family and Medical Leave Act of 1993 (FMLA) which created two new types of FMLA leave: Military Caregiver Leave and Active-Duty Leave. Although the NDAA became effective immediately following the President's signature, the DOL announced that it would not look to enforce the Act until it issued regulations as long as an employer was attempting to comply with the NDAA "in good faith." The new regulations apparently end this amnesty period.

Active-Duty Leave, as the name suggests, is triggered when the employee's relative is called to active duty. It can be taken by employees spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." The new regulations finally define what is a "qualifying exigency."

Section 825.126(a) of the final rule defines qualifying exigency by providing a specific and exclusive list of reasons for which an eligible employee can take leave because of a qualifying exigency. These reasons are divided into seven general 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.

The short-notice deployment category involve the situation where a covered military member is notified less that seven days prior to a deployment. Under these circumstances, leave can be taken to address any issue that arises from the deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the covered military member is notified of an impending call or order to active duty.

The Military Events and related activities category allows leave to attend any official ceremony, program, or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member.

The Childcare and School activities category allows an eligible employee to take leave to arrange childcare or attend certain school activities for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

Leave may be taken under this to arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement; (2) to provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status of a covered military member; (3) to enroll the child in or transfer the child to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and (4) to attend meetings with staff at a school or a day care facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.

The Financial and Legal Arrangements category allows qualifying exigency leave to make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, such as preparing and executing financial and health-care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (“DEERS”), obtaining military identification cards, or preparing or updating a will or living trust. It also allows leave to act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered military member’s active duty status.

The Counseling category allows qualifying leave to attend counseling provided by someone other than a health-care provider for oneself, for the covered military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

The Rest and Recuperation category provides leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

The Post-Deployment activities category allows qualifying exigency leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Finally, the Additional Activities category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

A future post will address how the new regulations answer the many open issues surrounding military caregiver leave. Stay tuned.

The U.S. Department of Labor (DOL) released the newly revised regulations governing the Family and Medical Leave Act (FMLA).   This is the first major regulatory update of the 1993 law in more than ten years. 

We will be providing the highlights of the changes shortly.  If you can't wait, the 750-page report can be accessed via the electronic version of the FMLA regulations in the Federal Register.

What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?

Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.

Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.

The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an

The Family Medical Leave Act (FMLA), is heavily abused and burdensome to administer.  Put together, this combination can mean a major headache for employers.  There are numerous questions that remain unanswered when it comes to what to do when an employer suspects an employee is abusing his FMLA rights.  Many employers have been subject to painful litigation as a result of the FMLA, especially as a result of their well-intentioned but improper attempt to regulate these frequent abuses.  There's no guaranteed way to avoid FMLA errors but sample scenarios help illustrate some of the most common traps for employers.

Requesting Recertification During Leave

If the employer has good, objective evidence that abuse is taking place, the employer may require that the employee be recertified before the end of leave.  If an employee requests an extension of leave, the circumstances since the last certification have changed significantly, or the employer has received information that casts doubt on the continuing validity of the certification.

Possible Options

The Department of Labor (DOL), issued an administrative ruling saying that "the FMLA does not prohibit an employer from including a record of an employee's absences along with the medical certification form for the health-care provider's consideration in determining the employee's likely period of future absences."  The employer may ask the provider whether the employee's absences are consistent with the stated serious medical condition. 

FMLA 103, part of the HR Summer School Back-to-Basic Series, addresses the very hot topic of intermittent leave.  Most HR professionals would agree that the FMLA's intermittent leave is one of the most difficult types of employment laws to administer.  In fact, a great number of the FMLA calls I get are, in some way, related to intermittent leave. 

For each question, I start my answer in the same way--with the basics.  Sometimes I find that, even the most knowledgeable HR professionals will skip the basics when there is a particularly unusual set of facts involved.  To make sure we don't overlook the forest for the trees, sometimes it's helpful to start at the beginning. 

What is Intermittent Leave?

The regulations prove that an eligible employee may take "intermittent leave" or go onto a "reduced leave schedule."

Intermittent leave is multiple instances of leave taken in separate blocks of time as opposed to one chunk of time, such as X days or weeks.  All of the instances of leave, though, are due to a single qualifying reason.

A  reduced leave schedule is a leave schedule that reduces an employee's
usual number of working hours per workweek, or hours per workday.  A
reduced leave schedule is a change in the employee's schedule for a
period of time, normally from full-time to part-time.

 Leave for Birth of a Child or Placement of a Child for Purposes of Adoption or Foster Care.  In this case, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. But remember that the employer does not have the discretion to "agree" if leave is need for an employee who has a serious health condition related to the birth of her child, or where the leave is related to her newborn's serious health condition. 

Planned Medical Treatments.  Intermittent leave may be taken for a serious health condition that requires periodic treatment by a health care provider.  In this instance, leave could be needed on an occasional basis for medical treatments, i.e., weekly kidney dialysis, or it can involve leave taken in blocks of days spread over a period of months, i.e., chemotherapy.  A common example of leave taken for planned medical treatments is a pregnant employee who takes intermittent leave for prenatal examinations. 

Recovery from Medical Conditions or Treatments.  Remember that time spent recovering from these treatments is also entitled to intermittent or reduced-scheduled leave.  For example, an employee may need a reduced schedule following radiation therapy until he develops the strength to work a full workweek.

Unanticipated Need for Leave.  An otherwise-FMLA-eligible pregnant employee suffering from morning sickness also would qualify for intermittent leave.  Pregnancy meets the standard for a serious medical condition for which the employee is under the care of a health care provider.

Immediate Family Members.  An eligible employee may take intermittent leave to care for an immediate family member who has, is being treated for, or is in recovery from a serious medical condition.  Just like leave for the employee himself, he may need unanticipated leave to care for his family member.  And remember that "caring for" is not limited to providing medical care in the strict sense.  Just providing psychological comfort, as we all know, can qualify as health care. 

Leave Where No Treatment Is Being Provided.  Intermittent or reduced schedule leave may be taken where the employee or the family member is incapacitated or unable to perform the essential functions of the job--even if not receiving treatment from a health care provider.  If an employee's parent, for example, has a terminal illness, the employee can take leave to "care," i.e., to provide comfort for, his parent, regardless of whether or not the parent is still being treated for the illness.