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Nov 2008
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November 20, 2008

DOL Issues Final Revisions to FMLA Regulations

The U.S. Department of Labor has issued revised regulations to the Family and Medical Leave Act. The regulations, which are scheduled to take effect January 16, 2009, are the first amendments to the 15-year-old rules implementing the FMLA. They also address the January 2008 National Defense Authorization Act (NDAA) amendments to the FMLA, which allow employees to take job-protected leave to provide medical care to family members with military-related medical conditions and for other military-related "qualifying exigencies." According to the DOL, the revised regulations are intended to improve communications between employers, employees and health care providers, and clarify the rights and responsibilities of employers and employees under the FMLA.

The 200 pages of new regulations are accompanied by 550 pages of commentary by the Department of Labor. Below is a brief summary of some of the more significant changes to the FMLA regulations.

Leave Related to Family Members' Military Service. The NDAA amendments created two new forms of FMLA leave related to a family member's military service. The regulations explain what those categories of leave are, and under what circumstances they can be taken:

  • Leave to Care for Service Member. This new form of leave has been in effect since January 2008. An employee may take this form of leave if his/her parent, spouse, son or daughter (any age) or "next of kin" has suffered a serious injury or illness in the line of active duty and is undergoing medical treatment, recuperation or therapy, or is in outpatient status or on the "temporary disability retirement list." The term "next of kin" is defined as the nearest blood relative (other than parent, spouse, son or daughter). Leave may be taken when the employee is "needed to care for" the injured service member (including providing psychological comfort), and may be taken intermittently or in a single block, for up to 26 weeks during one 12-month period only. During that 12-month period, the employee's maximum total FMLA leave (including this form of leave) is 26 weeks.

     
  • Qualifying Exigency Leave. This new form of leave will be available when the new regulations take effect in January 2009. An employee whose parent, spouse, son or daughter (any age) is on active-duty status or on call to active-duty status in support of a U.S. military "contingency operation" may take FMLA leave due to "qualifying exigencies." This form of leave is only available if the family member is called to active duty as a member of the Reserve or National Guard, or as a retired regular member of the U.S. Armed Forces. There are eight categories of Qualifying Exigency Leave: (1) Leave upon "Short Notice Deployment" (leave to be with a family member who is called to active duty with 7 or less days of notice); (2) Leave for Military Events and Related Activities (leave to attend an official ceremony, program or event or family support or assistance programs); (3) Leave for "Child Care or School Activities" (leave to make changes to child care and schooling arrangements relating to the family member's call to active duty); (4) Leave for "Financial and Legal Arrangements" (such as arranging powers of attorney, revising bank account signature authority or seeking military service benefits during and for 90 days after the period of active service); (5) Leave for "Counseling" (by someone other than a health care provider, provided that the need for counseling relates to the family member's active duty); (6) Leave during "Rest and Recuperation" (spending time with the service member while he or she is on leave); (7) Leave for "Post Deployment Activities" (attending military events within 90 days after the family member's active service ends or in the event of the service member's death); and (8) Leave for "Additional Activities" (other service related events by agreement of the employer and employee). Qualifying Exigency Leave may be taken intermittently and counts toward the employee's 12-week maximum allotment of FMLA leave (or 26-week maximum allotment if the employee is also taking "Leave to Care for Service Member" as described above).

The DOL has developed two new certification forms that may be used in the event of military family leave.

Employer Notice Requirements. The new regulations remove the automatic penalties associated with an employer's failure to designate qualifying time off as FMLA leave or notify an employee of his/her FMLA eligibility. Nevertheless, the DOL has expanded employer notice obligations, and the regulations state that an employer may be guilty of "interfering" with FMLA rights if it fails to give required notices and if the employee can show "harm" as a result of the employer's failure to give a notice (e.g., if he or she would not have taken the time off if he or she knew that it would not qualify as FMLA leave). There are now five basic employer FMLA notices:

  • Employers must post the standard FMLA "General Notice" poster notifying employees of FMLA rights.

     
  • Employers must also provide the information in the General Notice to all employees, either in an employee handbook or by distributing a copy.

     
  • The employer must give the employee an "Eligibility Notice" within five business days after the employee requests FMLA leave or the employer learns that the reason for an absence "may be" covered by the FMLA. The Eligibility Notice must tell the employee whether he or she is eligible for FMLA leave and has leave available and, if not, why not.

     
  • The employer must give a "Rights and Responsibilities Notice" at the same time that it delivers the Eligibility Notice. This notice must provide the employee with information such as whether medical certification is required, the employee's right to use paid leave, and other specific items of information listed in the regulations.

     
  • The employer must give the employee a "Designation Notice," advising the employee whether the leave will be designated as FMLA leave. This notice must also tell the employee whether "fitness to return to work" certification will be required and, if so, it must list the employee's "essential job functions."

Sample notices are attached to the new regulations. If a "significant part" (which is not defined) of the employer's work force is comprised of employees who are not literate in English, the employer must provide the notices in a language in which the employees are literate.

Employee Notice Obligations. The new regulations continue the basic rules for employee notice obligations depending upon whether the leave is foreseeable (i.e., at least 30 days of notice) or unforeseeable (i.e., as soon as practicable). If the employee does not give at least 30 days' advance notice of foreseeable leave, the employer may delay or deny leave until 30 days after notice has been given. For unforeseeable leave, the employer may delay or deny leave for the period of the notice deficiency (e.g., if the employee should have given two weeks' notice, but only gave one, the employer may delay or deny the leave for one week). The regulations delete problematic language stating that an employee need not report an FMLA covered absence until "one or two business days" after learning of the need for leave. Instead, the new regulations provide that an employee must follow the employer's normal notice of absence requirements (which may require written notice), provided that it is practical for the employee to do so based on the specific facts. Employees still do not need to "apply" for FMLA leave or even mention the FMLA; rather, it is up to the employer to determine whether the leave qualifies and to "inquire further" if the employee has furnished sufficient notice of circumstances that may qualify. Once an employee has been granted FMLA leave for a specific condition, however, the employee must notify the employer if a future absence is for the same FMLA-covered reason.

Serious Health Conditions. The new regulations do not change the six categories of serious health conditions for which FMLA leave must be granted. They do, however, clarify aspects of two categories of serious health conditions. First, for an absence that involves more than three full calendar days of incapacity plus at least two visits to a health-care provider, the first visit must occur within seven days of the first day of incapacity and both visits must take place within 30 days of the beginning of the incapacity. As for an absence of more than three full calendar days plus a regimen of continuing treatment by a health-care provider, the first visit to the provider must occur within seven days of the first day of incapacity. Second, for chronic conditions which require "periodic visits" to a health care provider, the regulations provide that there must be at least two visits to the health-care provider per year for the condition.

Medical Certification of Serious Health Conditions. The new regulations allow certain employer representatives to directly contact an employee's health care provider to clarify or authenticate a medical certification form. Those representatives are the employer's health care provider, a human resources professional, a leave administrator, or a management official. The employee's direct supervisor may not contact the employee's health care provider. Employers may not ask the health care provider for additional information beyond what is required on the certification form. Where a certification is incomplete or insufficient, the employer must return it to the employee; specify in writing what information is lacking; and give the employee seven days to provide additional information. Employers may generally require an employee to provide a recertification every 30 days in connection with an absence. However, if the latest medical certification sets a longer period of absence, or a longer period during which intermittent absences may occur, the employer may require a recertification only once each six months. The employer may require a new certification (including, potentially, second and third medical opinions) each leave year for conditions that are indefinite or that last longer than one year. The DOL updated its model Certification of Health Care Provider form to reflect these changes and created separate forms for employee conditions and family member conditions.

Perfect Attendance Bonuses or Awards. Unlike the existing regulations, the new regulations explicitly state that an employer may deny an employee a "perfect attendance" award or bonus if the employee does not have perfect attendance because of a FMLA leave. The employer must, however, treat employees taking FMLA leave no worse than employees taking non-FMLA leaves when it comes to these awards or bonuses.

Waiver of FMLA Rights. Under the existing regulations, there was considerable disagreement over whether an employee could settle or waive claims for past violations of the FMLA without DOL or court approval. The new regulations expressly allow employees to settle or release their FMLA claims without such approval. Prospective waivers of FMLA rights (e.g., a promise not to take FMLA leave in the future) continue to be prohibited under the new regulations.

What To Do. Between now and January 16, employers should familiarize themselves with the eight categories of new Qualifying Exigency Leave and the five Employer Notice Requirements. Also, make sure the FMLA "General Notice" poster is displayed in a prominent location and that the information in the General Notice is supplied to all employees either in an updated employee handbook or by distributing a copy of the regulations to each employee.

These are just a few of the more significant changes that have been made to the FMLA regulations. Because of the volume and complexity of the changes to the regulations and the various FMLA notices and forms, it is impossible to summarize them all here. A copy of the new regulations and the sample notices and forms can be downloaded at http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763. Additional information can also be found on the DOL's Web site at http://www.dol.gov/esa/whd/fmla/finalrule.htm.

More Help Is On the Way . . .

To help employers understand how to administer the FMLA under the new regulations, and to help them understand the new forms and notices and bring their policies and procedures into compliance, Warner Norcross & Judd's Labor & Employment Law Practice Group will be hosting a series of programs. During these programs we will also cover recent amendments to the Americans with Disabilities Act which take effect January 1, 2009, and the Employee Free Choice Act.

We will offer a half-day program in Grand Rapids as well as two expanded programs in Grand Rapids and Southfield which will include information on the Employee Free Choice Act.

December 10, 2008 - Grand Rapids
Crowne Plaza, 5700 28th Street SE

8:30 a.m. - 11:30 a.m. FMLA/ADA program


December 11, 2008 - Southfield
Skyline Club - 28th floor, 2000 Town Center

9:00 a.m. - 12:00 noon FMLA/ADA program
12 noon - 12:30 p.m. Lunch buffet
12:30 - 2:30 p.m. Employees Free Choice Act program


December 16, 2008 - Grand Rapids
Crowne Plaza, 5700 28th Street SE

9:00 a.m. - 12:00 noon FMLA/ADA program
12 noon - 12:30 p.m. Lunch buffet
12:30 - 2:30 p.m. Employees Free Choice Act program

More information on the programs, along with registration information, can be found at our Web site at http://wnj.com/newsevents/.

If you have questions, contact your Warner attorney, Chair Lou Rabaut at 616.752.2147 or lrabaut@wnj.com, or any member of the firm's Labor & Employment Group.



 

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