NEW FLMA REGULATIONS:
THE DEVIL’S IN THE DETAILS
More than 760 pages of new regulations governing the Family Medical Leave Act of 1993 (FMLA) took effect January 16, 2009. Although essential provisions of the Act remain unchanged [definition of covered employer, employee eligibility], the regulations provide new leave to military families, change the notice requirements for employees and employers, allow employers more latitude in requiring medical certifications, allow employers to require the substitution of any paid leave except disability benefits for unpaid leave and count mandatory overtime against leave entitlement. The regulations also organize related provisions into the same section for ease of reference. The rules can be found at 29 CFR Part 825.
Here is a summary of key provisions. Changes are in bold:
COVERAGE
A. Covered Employer
* Employs 50 or more employees within 75 miles of the work site
* Engages in commerce or any industry affecting interstate commerce
B. Eligible Employee
* Has been employed by the employer for at least 12 months. The 12 months need not be consecutive, but breaks in service of longer than seven years need not be counted, unless the break was a result of service in the National Guard or Reserves. An employer may make an initial determination based on retained records. If those records do not go back seven years, the burden is on the employee to submit sufficient proof of service. Further, because an employee remains employed while out on employer-approved leave, the employee becomes eligible for FMLA leave once he/she reaches the 12-month threshold. Any leave voluntarily provided by the employer prior to eligibility, does not count against an employee’s 12-week leave entitlement.
* Has been employed (actually worked) for at least 1,250 hours of service during the 12 months immediately preceding the start of leave.
* Has not otherwise exhausted his/her leave.
C. Qualifying Events For Which Leave May Be Taken
* The birth of the employee’s child or to care for a newborn child;
* Placement of a child for adoption or foster care or to care for the newly placed child;
* To care for a spouse, child or parent with a serious health condition. “Child” means younger than 18 or incapable of self-care.;
* An employee’s own serious health condition that makes the employee unable to perform one or more of the essential functions of his/her job.
* Any “qualifying exigency” arising out of the fact that a spouse, son, daughter or parent is on active duty with the National Guard or Reserves or has been notified of an impending call or order to active duty in support of a “contingency” operation [one ordered by the Secretary of Defense or that results in the call or order to or retention on active duty of members of uniformed services].
Part 825.126(a) provides the exclusive list of reasons that constitute a “qualifying exigency”:
1. Short-notice deployment – Allows employees leave to address any issues arising from a notice seven days or less prior to deployment. Maximum leave is seven (7) days.
2. Military events and related activities – Allows employees leave to attend official ceremonies, programs or events sponsored by the military and related to the active duty or call to active duty, as well as family support or assistance programs and informational briefings sponsored or supported by the military.
3. Childcare and school activities – Allows employees leave to arrange for alternative childcare when active duty or the call to active duty status requires a change in existing childcare, as well as to provide childcare on an urgent, immediate basis; to enroll at or transfer a child to a new school or childcare facility, or to meet with school or childcare staff.
4. Financial and legal arrangements – Allows employees leave to make or update financial or legal arrangements to address the military member’s absence, as well as to act as the military member’s representative before any government agency to obtain, arrange or appeal military service benefits.
5. Counseling – Allows employees leave to attend counseling provided by someone other than a healthcare provider. Applies to employee, military member or a child of the military member.
6. Rest and recuperation – Allows employees leave to spend time with a covered military member who is on short-term, temporary rest and recuperation (R & R) during deployment. Maximum leave is five (5) days for each instance of R &R.
7. Post-deployment activities – Allows employees leave to attend arrival ceremonies, reintegration briefings and events and any other official ceremony or program sponsored by the military for 90 days following termination of active duty status, as well as to address issues arising from the death of a military member while on active duty status, such as meeting and recovering the body of a covered military member and making funeral arrangements.
8. Additional activities – Allows employees leave to address other events arising out of a covered military member’s active duty or call to active duty not otherwise covered by Nos. 1 through 7 above, but only by agreement between the employer and employee as to the eligibility, timing and duration of such leave. Essentially, leave under this category is at the employer’s discretion, although the Act favors granting rather than denying leave.
* Separately, employees are entitled to up to 26 weeks of unpaid leave during a “single” 12-month period to care for a covered service member (includes regular Armed Forces, not just National Guard members and Reservists) with a serious illness or injury. Such leave is available only (1) once per injury or illness, although each caregiver is entitled to leave; and (2) if the employee is the service member’s spouse, son, daughter, parent or next of kin [the nearest blood relative not a spouse, son, daughter or parent or the blood relative designated in writing by the service member]; and if the service member is undergoing medical treatment or therapy, in outpatient status or on the temporary disability retired list. The “single 12-month period” begins on the first day leave is taken.
D. Serious Health Condition
A “serious health condition” remains an injury, illness, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider, however, the new rules offer additional guidance regarding three of the six individual definitions of “serious health condition.”
* For conditions involving more than three consecutive, full calendar days of incapacity plus two or more treatment visits to a healthcare provider, the two visits must occur in-person within 30 days of the first day of incapacity (unless extenuating circumstances exist), and the first in-person visit must take place within seven days of the first day of incapacity.
* For conditions involving three consecutive, full calendar days of incapacity plus continuing treatment, the first visit to the healthcare provider must take place in-person within seven days of the first day of incapacity.
* For chronic conditions,” employees must make at least two visits per year for treatment by a healthcare provider.
LEAVE ENTITLEMENT
A. Minimum Leave Increment.
* The essential provisions remain unchanged, except that employers now must account for such leave “using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave” up to one hour, thus allowing employers to calculate intermittent and reduced-schedule leave on the same basis as other employee absences. The old rules required employers to account for leave using the shortest period of time the employer’s payroll system uses, often 15-minute increments.
B. Minimal Leave Increment Exception.
* Where it is “physically impossible” for an employee on intermittent or reduced-schedule leave to start or end work mid-way through a shift, the entire shift may be designated and counted as FMLA leave. This exception, however, appears to be narrow, with the DOL citing examples “such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed clean room.”
C. Compliance with Employer Policy.
* An employer may require an employee seeking leave that is unforeseeable to comply with the employer’s “usual and customary notice and procedural requirements for requesting leave.” Requests for foreseeable leave still must be made 30 days in advance or, if fewer than 30 days until the start of such leave, as soon as practicable. “Practicable” means the same day or the next business day that an employee becomes aware of the need for leave.
D. Substitution of Paid Leave.
Any form of paid leave, not just vacation and including “generic” leave, may be substituted in lieu of unpaid leave. The exceptions are worker’s compensation leave (but only if both the employer and employee agree to the substitution) and short-term disability leave. An employer may require an employee to exhaust paid leave before going on unpaid leave. As before, any paid leave counts against the employee’s leave entitlement.
E. Light Duty Work.
* If an employee recuperating from a workers’ comp injury accepts light duty work (he/she is not required to do so), the time on light does not count against FMLA leave entitlement. Further, an employee’s right to be restored to his/her former position is held in abeyance while the employee is on light duty. However, if the employee is unable to resume work after exhausting his/her 12 weeks of leave in the 12-month leave period, the employer’s obligation to restore the employee to his/her former position ceases. Indeed, at that point, the employer may permanently assign the employee to a different position or terminate the employee. [See Parts 825.220(d) and 925.702(d)].
F. Overtime.
* Hours that an employee would have been required to work overtime (scheduled mandatory overtime) may be counted against an employee’s FMLA leave entitlement. What would have been voluntary overtime, may not be counted against his/her entitlement.
NOTICE REQUIREMENTS
A. Employer Notice Requirements
The requirements have been consolidated at Part 825.300 and are divided into four categories.
1. General Notice.
As before, employers are required to post a notice explaining the FMLA’s provisions and providing information on procedures for filing complaints. Under the new regulations, electronic posting is sufficient, provided that employees and applicants can access the materials. In addition, the new regulations clarify that general notice must be supplied to employees in employee handbooks or other written guidance if such materials exist or by distributing a copy of the general notice to each new employee upon hiring.
2. Eligibility Notice
When an employee requests FMLA leave or the employer acquires knowledge that an employee’s absence may be for an FMLA-qualifying reason, the employer must notify the employee of his/her eligibility for FMLA leave within five (5) business days, absent extenuating circumstances. If the employee is ineligible, the notice must state at least one reason why. Once such eligibility is confirmed, all FMLA absences for the same qualifying reason are considered a single leave, and the employee’s eligibility for that reason continues and does not change during the applicable 12-month period.
3. Rights and Responsibilities Notice.
Employers must provide written notice to an employee each time an eligibility notice is provided, regarding specific FMLA expectations and obligations and the consequences for failure to meet same. This notice would be accompanied by the applicable FMLA medical certification form, if required by an employer for FMLA leave authorization.
4. Designation Notice.
If leave is approved, employers must provide notice to employees specifically designating the leave as FMLA-qualifying within five (5) business days after an employer “has enough information to determine whether leave is being taken for a FMLA-qualifying reason.” Specifically and importantly, this means an employer may delay final leave designation until a required medical certification form has been returned, rather than making a tentative determination pending certification, as in the past.
B. Employee Notice Obligations
1. Foreseeable Leave.
* As before, employees must provide employers with at least thirty (30) days’ advance notice before FMLA is to begin if the need for leave is foreseeable. For cases where 30 days’ notice is not possible (e.g., because of lack of knowledge of approximately when leave will begin although the need itself is foreseeable), notice must be given “as soon as practicable,” specifically, either the same day or the next business day of when the employee becomes aware of the need for foreseeable leave.
2. Unforeseeable Leave.
* As before, employees must provide notice to the employer “as soon as practicable.” However, the new regulations clarify that “it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” Further, the regulations specifically state, “calling in sick” without providing more information is not sufficient notice to trigger an employer’s obligations under the FMLA.
C. Notice Content
* For foreseeable leave, employees must provide sufficient information for an employer to be “aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” For unforeseeable leave, employees must provide “sufficient information for an employer to reasonably determine whether the FMLA will apply to the leave request.” As before, when seeking leave for the first time for a FMLA-qualifying reason, employees need not expressly assert or reference their rights under the FMLA. Employees seeking leave due to a qualifying reason for which he/she has been granted FMLA leave in the past must specifically reference either the qualifying reason for leave or the need for FMLA leave.
D. Medical Certification
1. Timing.
* Employers have five days (instead of two) after the employee gives notice of the need for leave (or, in the event of unforeseeable leave, the date that leave begins) to request that an employee furnish medical certification.
2. Separate Employee and Family Member Forms.
* DOL has approved two medical certification forms — one for an employee’s own serious health condition, and one for a family member. [Available on DOL web site.]
3. Incomplete/Vague Certification.
* If an employer receives an incomplete or vague, ambiguous or non-responsive medical certification, it must allow an employee seven (7) calendar days to cure the deficiency (unless “not practicable under the particular circumstances despite the employee’s diligent good faith efforts”). If the deficiencies specified by the employer are not cured within the time frame required, FMLA leave may be denied. Leave also may be denied for failing to return a certification.
4. Healthcare Provider Follow-up.
* An employer representatives may contact a healthcare provider directly to clarify and authenticate medical certification forms after giving an employee the opportunity to cure any deficiencies. Contact must be made using a healthcare provider, an HR professional, a leave administrator or some other management official. Under no circumstances may an employee’s “direct supervisor” contact the healthcare provider.
5. Extended/Chronic Conditions.
* Where a serious health condition lasts beyond a single leave year, employers may require employees to provide a new medical certification each subsequent leave year.
6. ADA/Workers’ Comp Data.
* Employers may consider information provided by employees and their healthcare providers in connection with Americans With Disabilities Act (ADA) disability or reasonable accommodation requests and/or workers’ comp claims. Such information may be used to evaluate medical certifications provided and determine an employee’s entitlement to FMLA-qualifying leave. The change is intended to help employers meet HIPAA privacy requirements.
7. Fitness for Duty Certification
* Employers may require that fitness for duty certifications specifically address the employee’s ability to perform the essential functions of his/her job, but only if the employer provides the employee with a list of those essential job functions no later than with the Designation Notice. [See A. (4) above] Employers still may not request fitness for duty certifications for employees on intermittent or reduced-leave schedules. However, employers may request a fitness for duty certification for such absences once every 30 days “if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave.”
RETALIATION / ENFORCEMENT
A. Achievement and Incentive Awards.
* As before, with some limited exceptions, employees have a right to reinstatement to the same or an equivalent position upon return from authorized FMLA leave. This includes the right to the same or equivalent pay, benefits and working conditions. However, if an award or other payment is based achievement of a specified goal (e.g., hours worked, products sold or perfect attendance) that the employee has not met due to FMLA leave, then payment may be denied, unless otherwise paid to employees on other, similar, employer-authorized leaves.
B. Liability Waivers.
* Employees may voluntarily settle or release any actual or potential FMLA claims against an employer without the requirement of court or DOL approval. Prospective waivers of FMLA rights continue to be prohibited.
EMPLOYER ACTION STEPS
As with any new statutes or regulations, the new FMLA rules present both challenges and opportunities for employers. Although time is short, you should:
1. Evaluate your current FMLA practices and revise policies, notices and forms to comply with the new requirements;
2. Make sure HR professionals, front-line managers and other personnel involved in day-to-day implementation of FMLA leave know the new rules; and
3. Make sure employees are notified of the changes.
For assistance in updating your FMLA policies and materials or educating HR employees on the new FMLA regulations, please contact Robert L. Gross at [email protected].