New FMLA Regulations

The new Familiy and Medical Leave Act Regulations become effective in one month on January 16, 2009. If you’re hoping they will make the administration of the FMLA substantially easier on a day-to-day basis, I fear you’ll be disappointed. If you’re hoping they will provide a significant way to reduce FMLA abuse, I fear you’ll be disappointed again. The new regs help somewhat. The new forms are perhaps the best thing about the new regs. But the new regs won’t dramatically change your FMLA life.

It’s important to remember that the FMLA is somewhat like state workers’ compensation and unemployment compensation laws. It’s often said by state agencies and courts that these two laws are designed to help employees — in one case, injured employees and in the other, unemployed employees. Accordingly, these laws are liberally interpreted in favor of employees.

The FMLA is designed to help employees who are sick, whose family members are sick, and who have babies. It’s not going too far to say that the FMLA will, therefore, be interpreted liberally in favor of employees. That ensures some abuse and more than a little frustration on the part of HR professionals who have to administer the law every day. But that’s the way it is, and the new regs do nothing to change that reality.

Since the new FMLA regs were published by the U.S. Department of Labor on November 14, much has been written about them. I commend the following as good summaries of these new regs: Dan Schwartz (Part I, Part II and Part III); Jon Hyman (here, here and here); Michael Moore; and Delaware Employment Law Blog (here, here, here, and here). So, why write more? It seems just as legitimate to ask why not.

The new regs can be found on the DOL’s website at www.dol.gov. They have also been published in Volume 29 of the Code of Federal Regulations at Section 825 (replacing the previous FMLA regs which were in this same section). For my purposes in discussing the new regs, I’ll address the new military leave provisions and then the new non-military leave provisions. I’ll address these provisions in one, lengthy post, rather than breaking them into several.

FIRST, MILITARY FMLA LEAVE.

There are two types of FMLA military leave: qualifying exigency leave and seriously injured or ill servicemember leave. And there’s a big difference between the two.

Qualifying exigency leave. QE leave is subject to the same “12 weeks within 12 months” as regular FMLA leave. The spouse, child or parent of a servicemember on active duty in the armed forces in support of a “contingency operation” (as defined under military statutes) is eligible to take QE leave.

Definitions. The new regs define a “qualifying exigency” as (1) short-notice deployment, meaning a call or order given no more than seven calendar days before deployment (the eligible employee can take up to seven days beginning on the date of notification); (2) military events and related activities (such as military-sponsored welcome home or send-off events and family information briefings or support programs); (3) urgent (as opposed to recurring and routine) child-care and school activities; (4) financial and legal arrangements caused by the family member’s active duty; (5) family, marital, emotional or other counseling not already covered by the FMLA; (6) time with a servicemember on rest and recuperation breaks during deployment, for up to five days per break; (7) post-deployment military activities (like meetings sponsored by the military, arrival ceremonies, reintegration briefings or arrangements relating to the death of the servicemember); and (8) any other activities the employer and employee agree to as being the basis for QE leave.

Eligibility. Note that QE leave can’t be used by members of the military themselves. It’s only available to spouses, children and parents. Also, QE leave can only be used by spouses, children and parents of members of the Reserves and National Guard and certain retired members of the military – not active members of the regular military or armed services.

Notice. Employees seeking QE leave must give reasonable and practicable notice if the exigency is foreseeable. The notice must inform you that a family member is on active duty or has been called to active duty status, cite a listed reason for leave, and give the anticipated length of absence. Family members are defined broadly. A son or daughter on active duty, for example, includes an employee’s biological, adopted, or foster child, stepchild, legal ward, or one for whom the employee stood in place of the parent, regardless of age.

Forms. You can request a copy of the applicable active duty orders for each active duty call related to a QE leave request. The DOL has an optional form WH-384, for “supporting facts,” but it’s unclear if it will be effective in obtaining the information allowed. For now, therefore, consider using the employee’s signed statement as allowed by the new regs which contains (1) the approximate date of the qualifying exigency; (2) the start and ending dates of the leave request (or frequency and duration if the leave is intermittent); (3) third-party contact information; (4) general description of the purpose of any meeting for which the leave is requested; and (5) documentation supporting that the event occurred. If the employee submits a complete, sufficient certification supporting a request for QE leave, you may not request additional information. Recertification isn’t permitted.

Seriously injured or ill servicemember leave (sometimes called military caregiver leave). Seriously injured or ill servicemember leave differs from all other types of FMLA leave in that it can last up to 26 weeks (taken in one block or intermittently). This type of leave can only be used once, and all 26 weeks must be used within the same 12-month period. But note that the 12-month period for this kind of leave doesn’t start until the employee takes the first day of the 26-week leave. All types of FMLA leave taken by an employee during the same 12-month period are added together for purposes of computing the 26-week period. For example, if an employee had already taken 12 weeks of FMLA leave to care for a newborn or her own serious health condition, she would only have 14 weeks left to use for injured servicemember leave.

During the 12-month period described in the example above, the employee couldn’t take more than 12 weeks of regular FMLA leave for another qualifying purpose. She could only take 12 weeks of leave for any other FMLA-qualifying purpose asise from injured servicemember leave. So, if the above example were reversed to say that the employee had taken 12 weeks of injured servicemember leave before the birth of her child, she would still only be eligible to take a total of 12 weeks of FMLA leave in connection with the birth of the child and any serious health condition resulting from the pregnancy within the same 12-month period as her injured servicemember leave. Spouses who are employed by the same employer are limited to a combined total of 26 weeks of seriously injured or ill servicemember leave.

Eligibility. As the name implies, the sole basis for taking this kind of leave is to care for a servicemember who has suffered a serious injury or illness in the line of active duty. It can be taken by a spouse, parent or child. These categories of relatives are defined broadly, but parent doesn’t include in-laws. In addition to being taken by a spouse, parent or child, this leave can also be taken by a seriously injured or ill servicemember’s “next of kin.” The servicemember can be in the regular armed forces, the Reserves, or the National Guard or can be anyone in those categories on a temporary disability retired list (TDRL).

The term “next of kin” is defined as the servicemember’s closest blood relative outside of his spouse, parent or child. If one blood relative has been given legal custody of the servicemember, then that person would be the next of kind. However, in all other cases, next of kin would be considered in order of siblings, then grandparents, aunts and uncles and first cousins. If more than one person is equal in this line of succession (e.g., two sisters), then all of the equal blood relations (both sisters, for example) will qualify as the servicemember’s next of kin, and all of them can take leave under this provision of the FMLA. The servicemember can also designate a blood relative to be his next of kin. If this designation is made, then that person will be considered the servicemember’s only next of kin for purposes of this FMLA provision.

Definition. Note that a “serious injury or illness” for a servicemember isn’t defined the same as a “serious health condition” for purposes of regular FMLA leave. A serious injury or illness for a servicemember (1) must be incurred in the line of duty, as determined by the Department of Defense, rendering the servicemember medically unfit to perform the roles of his office, grade, rank, or rating and (2) requires either ongoing medical treatment, therapy or recuperation, whether in an inpatient or outpatient facility, or is on TDRL. Servicemembers who’ve been discharged from the military or who’re on the permanent disability retired list don’t qualify.

Forms. You may require certification of the need for this kind of leave from specific military health care providers. The DOL offers an optional form, WH-385, for certifying this leave. It’s permissible to contact the health care provider concerning authentication and clarification issues, but you can’t ask for second and third opinions, and there can be no recertifications.

NEXT, NON-MILITARY FMLA LEAVE

Serious health conditions.The six definitions of serious health condition are maintained, but additional guidance is given by the regs. For leave involving incapacity of more than three consecutive, full calendar days, the employee must receive two treatments by a health care provider with 30 days of the first day of incapacity or one treatment that results in a regimen of continuing treatment, with the firs treatment in either case occurring in the first seven days. In the case of a chronic serious health condition, at least two visits to a health care provider per year are required.

Eligibility clarifications. Questions had arisen concerning how to count employees’ past service toward the requirement that they be employed by the covered employer for at least 12 months (and, remember, the 12 months don’t have to be consecutive). Under the new regs, employment before a break in service of seven years or more doesn’t have to be counted. There are exceptions for military service and certain rehire agreements that anticipate a longer break in service.

Intermittent leave. The new regs allow you to limit leave increments to the shortest time period used to account for absences or leaves, provided it’s one hour or less.

Light duty. An employee who accepts a light-duty job doesn’t use FMLA leave in doing so, nor does he waive any future rights, including the right to job restoration.

The new regs require you to give employees four kinds of notice, generally within five business days (currently two) in the absence of extenuating circumstances. If an employee suffers individual harm because you didn’t follow these notification rules, you may be liable.

General notice. If you have employee handbooks or other written materials, the general FMLA notice must be included in them. If you don’t have a handbook or written materials, you must give employees FMLA notice when they’re hired, rather than once a year. The new DOL model general notice has been modified to include more detail on the information employees must furnish in order to receive FMLA leave. Notice may be given online, provided that online information is accessible to all employees and job applicants, and the information must be given in languages besides English if a “significant percentage” of non-English speakers are in the workplace. The percentage is otherwise undefined.

Eligibility notice. You must notify employees in either the eligibility or designation notice (see below) of how much FMLA leave they have available. Only one eligibility notice is required per qualifying FMLA reason p[er leave year. If an employee is ineligible for FMLA leave, you must give at least one reason for ineligibility.

Rights and responsibilities notice. Eligible employees must receive this notice when they receive the eligibility notice. This notice includes such information as furnishing certification and the consequences of not not doing so, the right to substitute paid leave, and the requirement of paying health insurance premiums, along with any required certification forms.

Designation notice. With five days, you should obtain enough information to determine whether leave is being taken for an FMLA-qualifying reason and use this notice to tell the employee whether the leave will count as FMLA leave. In this notice or earlier, you must notify the employee if she will have to provide a fitness-for-duty certification to return to work. If you want the certification to reflect her ability to perform the essential functions of her job, the notice must include them.

The new regs also impose certain notice requirements on employees.

Foreseeable leave. Employees must give at least 30 days’ notice when need for FMLA leave is foreseeable that far in advanced. If 30 days isn’t practicable, the employee must give notice “as soon as practicable” but must tell you, if asked, why 30 days wasn’t practicable.

Unforeseeable leave. It generally should be practicable for employees to give notice of unforeseeable leave within the time required by your usual and customary notice requirements. The current provision had been interpreted to allow some employees to notify their employers of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice sooner. Under the new rules, absent unusual circumstances, employees must follow your usual notice and procedural requirements for taking leave unless they’re more stringent than the FMLA permits. You may delay or deny FMLA leave when an employee doesn’t comply with your procedure3s and there’s no unusual circumstance for not complying.

Medical certification. Under the new regs, you have five business days to request certification, and the employee has at least 15 calendar days to submit it, including when she has given 30 days’ advance notice of foreseeable leave. Employees have at least seven days to cure incomplete or insufficient certifications.

You may obtain annual certifications of conditions lasting more than one leave year. Your representatives — but not the employee’s direct supervisor — may directly contact the employee’s health care provider for authentication or clarification of certification, provided the employee has been given the opportunity to cure a faulty certification. Clarification is defined as help in understanding handwriting or the meaning of a response. You must obtain valid Health Insurance Portability and Accountability Act (HIPAA) authorization to contact HIPAA-covered health care providers.

You may obtain fitness-for-duty certifications for employees returning from leave. Employees on intermittent leave may be asked for fitness-for-duty certification when there are reasonable safety concerns, defined as a reasonable belief of a significant risk of harm to the employee or others, considering the nature and severity of the potential harm and likelihood of occurrence. These certifications can’t be required more often than once every 30 days.

There is no form for fitness-for-duty certification, and you can’t obtain second or third opinions on fitness for duty. Consistent with the Americans with Disabilities Act, however, you may require an employee to take a medical exam at your expense after he has returned from FMLA leave.

Waiver rights. Employees may voluntarily settle their past FMLA claims without court or DOL approval. However, prospective waivers of FMLA rights will continue to be prohibited.

Perfect attendance awards. You may deny a “perfect attendance” award to employees who don’t have perfect attendance because they took FMLA leave — but only if employees taking non-FMLA leave are treated the same way.

Things to do. Update your FMLA policies to match the new regs. Take this opportunity to consider changing other policies (such as moonlighting and attendance/call-in policies). Update your FMLA posters and forms (available from www.dol.gov.) Update your FMLA designation letter. Review your separation agreements and release forms to make sure that the release covers FMLA claims. Provide basic training to your supervisors, since it’s important that they know enough to pass along any FMLA information they obtain to HR.

And there you have it. Not exactly all of it, but hopefully enough to get you started, or if you’ve already started, keep you going. It’s important to remember that the new regs will require additional DOL interpretation and interpretation by the courts. Not everything is clear or ever will be. When you’re dealing with a question or problem involving the new regs, it’s prudent to get some advice from your labor and employment lawyer. We’re all learning together, and when things are new, two heads are usually better than one.

HR Hero is offering two audio conference on the new FMLA regulations: Understand the New FMLA Regulations: What Changed on January 16 and FMLA Intermittent Leave: What the New Regulations Change and What Stays the Same