The Department of Labor Issues Final FMLA Regulations

On November 17, 2008, the Department of Labor (DOL) published its final rules to implement the Amendments to the Family and Medical Leave Act (FMLA). The Amendments were signed into law by President Bush in January 2008 as part of the National Defense Authorization Act (NDAA). The new rules provide guidance on the implementation of the military family leave provisions contained in the Amendments, as well as clarify and update the existing rules. The new rules take effect January 16, 2009.

Military Family Leave

The FMLA Amendments added two categories of covered conditions permitting an eligible employee to take FMLA leave: (1) an eligible employee may now take FMLA leave to care for a family member with a “serious illness or injury” incurred in the line of duty, and (2) an eligible employee may now take FMLA leave due to “exigencies” related to active military duty.

Leave for Family Members Injured in the Line of Duty. The first of the new military family leave entitlements provides eligible employees who are family members of covered servicemembers the ability to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty. This 26 workweek entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond the usual relatives who may take FMLA leave for other qualifying reasons.

Qualifying Exigency Leave. The second of the new military family leave entitlements makes available to servicemembers and their families the normal 12 workweeks of FMLA leave for any “qualifying exigency.” The final rules define a “qualifying exigency” as: (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 not encompassed in the other categories, but agreed to by the employer and employee.

For purposes of qualifying exigency leave, the rules broaden the definition of a “son or daughter” to a child of any age.

The final rules also include two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family leave.

In addition to the rules implementing the new Amendments concerning military family leave provisions, the rules make a variety of regulatory changes.

Medical Certification Process. The new regulations make several significant changes to the medical certification process. The rules recognize the applicability of the Health Insurance Portability and Accountability Act (HIPAA) privacy rules to the communications between employers and employees’ health care providers. In light of these HIPAA privacy rules, the new FMLA regulations make the following changes:

1) Provide that an employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor;

2) Provide that employers may not ask health care providers for additional information beyond that required by the certification forms;

3) Improve the exchange of medical information by updating the DOL’s optional Form WH-380 to create separate forms for the employee and covered family members; and

4) Allows, but does not require, health care providers to provide a diagnosis of the patient’s health condition as part of the certification.

Furthermore, if an employer deems a medical certification to be incomplete or insufficient, the new regulations require the employer to specify in writing what information is lacking, and give the employee seven (7) calendar days to cure the deficiency.

Finally, the new rules clarify how often that employers may request a new medical certification. The rules provide the following time table for requesting recertification:

1) If the duration of the leave certification (continuous or intermittent) is for more than 30 days, the employer cannot request the recertification until the end of the duration set forth in the certification, except that an employer can always request recertification six months after the last certification in connection with an absence.

2) If the duration of the leave certification is 30 days or less, an employer may only request recertification in less than 30 days if (1) the employee requests an extension of the leave beyond the original certification duration, (2) there are significant changes in circumstances of duration or frequency of absences or severity of the medical condition, or (3) based on information that casts doubt upon the need for continued leave.

Categorical Penalties. The final rules remove categorical penalty provisions that were contained in the previous regulations. The rules also clarify that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable. Both of these provisions are in response to the Supreme Court decision of Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), which held that these categorical penalty provisions were invalid and contrary to the FMLA. In that case, the penalty would have required the employer to provide an additional 12 weeks of FMLA leave after the 30 weeks the employee had already received. The Supreme Court held that this would be inconsistent with the statutory entitlement to only 12 weeks of leave and contrary to the statute’s remedial requirement that an employee demonstrate individual harm.

Light Duty. The final rules clarify that an employee does not use up FMLA leave while performing “light duty” work. Furthermore, an employee’s right to be restored to their job is preserved during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).

Fitness for Duty Certifications. The new regulations make two changes to “fitness-for-duty” certifications—the certification which an employer can require from an employee to certify the employee is able to resume work. The new rules:

1) Provide an employer may now require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job;

2) Allow an employer to require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave where reasonable job safety concerns exist.

Waiver of FMLA Rights. The final rules codify the Department’s view that employees may voluntarily settle or release their past FMLA claims without court or DOL approval. This is in response to the Fourth Circuit decision of Taylor v. Progressive Energy, Inc., 493 F.3d 454 (4th Cir. 2007), which interpreted the previous regulations as prohibiting employees from either retroactively or prospectively waiving their rights. Prospective waivers of FMLA rights, however, continue to be prohibited under the new regulations.

Serious Health Condition. The final rules retain the six individual definitions of a “serious health condition” while adding guidance on three regulatory matters:

1) One of the definitions of a serious health condition involves more than three consecutive, full calendar days of incapacity and “two visits to a health care provider.” The new rules provide that the two visits must occur within thirty (30) days of the beginning of the period of incapacity and the first visit to the health care provider must take place within seven days of the first day of incapacity.

2) A second way to satisfy the definition of a serious health condition under the previous regulations involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing the treatment. The new rules clarify that the first visit to the health care provider during the continuing treatment must take place within seven days of the first day of incapacity.

3) The previous regulations are open-ended with regard to “periodic visits” for chronic serious health conditions. The new rules clarify “periodic visits” as at least two visits to a health care provider per year.

Substitution of Paid Leave. The Act provides that employees may take, or employers may require employees to take, any accrued paid vacation, personal, family or medical or sick leave, as offered by their employer, concurrently with any FMLA leave. This is called the “substitution of paid leave.” Under the previous regulations, there were different procedural requirements for use with these different types of leave. The new rules provide that all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy that apply to other employees using the same type of leave.

Perfect Attendance. The new rules change the treatment of perfect attendance awards. The rules allow an employer to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave, as long as it treats employees taking non-FMLA leave in an identical way.

Employer Notice Obligations. The new rules clarify and strengthen the employer notice requirements in order to better inform employees. Employers will now be required to provide employees with a general notice about the FMLA, an eligibility notice, a rights and responsibilities notice, and a designation notice. The time for employers to provide the notices is extended from two to five business days. (However, the designation notice only comes after review of certification if required. This can take much longer than 5 days).

Employee Notice Obligations. The previous regulations allowed some employees to provide notice to an employer of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly. The new rules change this by requiring employees needing FMLA to follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

Conclusion

The new FMLA regulations are both complex and varied. If you have questions regarding how these new rules will affect your business, or would like additional information, please contact our Firm for assistance. To help employers comply with the final FMLA regulations, a Lunch and Learn has been scheduled for January 8, 2009, in the Firm's Little Rock offices. Details will be released soon.