New FMLA Regulations: What Every Employer Should Know

In November 2008, the U.S. Department of Labor published revised regulations to the Family and Medical Leave Act (FMLA or the Act) for the first time in the Act's 15-year history. The much anticipated regulations are over 750 pages long and take effect on Jan. 16, leaving scant time for employers to implement new procedures to comply with the law. The most significant of these changes are addressed herein.

Top Five Changes

New Entitlements to Military FMLA Leave

The National Defense Authorization Act (NDAA), signed by President Bush last January, amended FMLA to provide two new entitlements, military caregiver leave and qualified exigency leave. Both of these new leaves may be taken on an intermittent or reduced schedule basis. The new FMLA regulations define these leaves as follows:

Military Caregiver Leave

Eligible employees who are family members of “covered servicemembers” may take up to 26 workweeks of leave in a 12-month period to care for a servicemember with a serious illness or injury incurred in the line of duty. A covered servicemember must be a member of the Armed Forces, including the National Guard or Reserves, who has a serious injury or illness for which he or she is undergoing medical treatment, recuperation or therapy; otherwise in outpatient status; or otherwise on the temporary disability retired list. Former members and members on the permanent disability retired list are not covered.

To be eligible, an employee must be the “next of kin” of a covered servicemember, which is defined as the servicemember's nearest blood relative, other than his or her spouse, parent, son or daughter, in a particular order of priority. A covered servicemember may, however, designate in writing another blood relative as “next of kin” for purposes of military caregiver leave. In the absence of a designation, all family members sharing the closest level of familial relationship to the servicemember shall be considered the servicemember's next of kin. This means that when a servicemember has three siblings, all three siblings could be considered next of kin and eligible to take 26 weeks of leave, even if working for the same employer. This definition alone significantly broadens employees who could be eligible for FMLA leave.

Qualifying Exigency Leave

The new regulations also define under what circumstances military families can utilize FMLA leave. Employees with a “covered military member” serving in the National Guard or Reserves may take up to 12 weeks of job-protected, unpaid leave for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status. A covered military member refers only to members of the National Guard or Reserves, not to members of the Armed Forces generally.

The final rule defines what types of events are a qualifying exigency: 1) short-notice deployment in support of a contingency operation; 2) military events and related activities; 3) non-routine childcare and school activities; 4) financial and legal arrangements; 5) counseling, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member; 6) spending time with a covered military member who is on short-term, temporary, rest and recuperation leave; 7) post-deployment activities; and 8) activities not encompassed in the other categories, but agreed to by the employer and employee.

Certification Procedures

Medical Certification Process

Under the old regulations, employers were barred from directly contacting health-care providers to discuss medical certifications. Now, employers may directly contact an employee's health-care provider, with some limitations. First, the employer must provide the employee an opportunity to cure any deficiencies in the certification. If the deficiencies are not rectified, the employer must use a health-care provider, human resources professional, leave administrator, or a management official to contact the provider. Under no circumstances, however, may an employee's direct supervisor contact the employee's provider.

Fitness-for-Duty Certifications

Under the current regulations, employers could only require a “simple statement” from the health-care provider regarding the employee's ability to return to work. Under the new regulations, the employer can require the fitness-for-duty report to address the “essential functions” of the job, as long as the employer provides a list of the essential job functions to the employee when leave is originally designated.

With respect to intermittent leave, employers could not require an employee on such leave to submit a fitness-for-duty certification before returning to work. Under the new regulations, employers can require employees on intermittent leave to submit a fitness-for-duty certification before returning to work as often as every 30 days when leave is taken during that time period, if there are reasonable safety concerns present, and the practice or policy is uniformly applied for all leaves of absence.

Recertification Procedures

Previously, employers could generally request a recertification after the durational period specified in the original medical certification passed. Consequently, for many chronic
or lifetime conditions, health-care providers denoted the durational period as “lifetime” or “unknown.” To address this, the new rule permits recertifications every six months in all cases.

New Definitions

Serious Health Condition (Including Changes to Chronic Conditions)

The FMLA includes six different definitions of the term “serious health condition.” The new regulations attempt to clarify three of these definitions. First, when an employee or family member experiences more than three consecutive, full calendar days of incapacity, plus “two visits to a health-care provider,” the rule clarifies that the two visits must occur within 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.

Second, when an employee or family member experiences more than three consecutive, full calendar days of incapacity plus “a regimen of continuing treatment,” the rule requires the first visit to the health-care provider take place within seven days of the first day of incapacity.

Third, the definition of “periodic visits” for chronic serious health conditions is now defined as at least two visits to a health-care provider per year.

Notification Procedures

Employer Obligations

The new rule lengthens the time frame that the employer is responsible for designating leave as FMLA-qualifying and for giving notice of the designation to the employee from two business days to five business days. In addition, the final rule revises the “categorical penalty” provision. Previously, when an employer failed to timely designate FMLA leave, some courts required the employer to provide leave beyond the 12-week statutory entitlement. Now, a failure to timely designate leave as FMLA-qualifying will only result in a cognizable claim if the employee suffered individualized harm as a result of a violation.

Employee Obligations

The final rule modifies the current interpretation that employees can 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. Now, an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

New Forms

DOL has issued the following new/revised forms: Certification of Health Care Provider for Employee's Serious Health Condition (WH-380E); Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380F); Notice of Eligibility and Rights & Responsibilities form (WH-381); Designation Notice to Employee of FMLA Leave (WH-382); Certification of Qualifying Exigency for Military Family Leave (WH-384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

Other Key Changes

Coverage and Eligibility

To be eligible for leave, an employee must have been employed by the employer for at least 12 months. The existing regulation provides only that the 12 months need not be consecutive. The new rule clarifies that employment periods prior to a break in service of seven years or more need not be counted, except if the employee's break in service is occasioned by the fulfillment of his or her National Guard or Reserve military service obligation; or a written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes).

In addition, the new rule clarifies that an employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for any FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.

Substitution of Paid Leave

Generally, FMLA leave is unpaid leave; however, employees can substitute accrued paid leave for FMLA leave. Previously, employers could place no restrictions on the substitution of paid leave for FMLA leave. The revised rules clarify that employees may substitute the applicable paid leave by complying with the terms and conditions of the employer's normal leave policy. For example, if an employer's paid sick leave policy prohibits the use of sick leave in less than full-day increments, employees would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave. Or, if the policy requires two days notice for personal time off, that notice requirement would still apply for using paid leave concurrently with FMLA leave. The new rules require employers to notify employees of any procedural requirements for the use of paid leave.

Practical Steps to Assure Compliance

Although these are the most significant changes, employers must become familiar with all of the revisions and should have implemented a compliance plan before the rules go into effect on Jan. 16, To ensure compliance and to take full advantage of the new rules, corporate counsel and HR executives are encouraged to:

• Ensure that their HR Department or leave administrator is trained on the new regulations.
• Ensure that the new FMLA policies and procedures are applied consistently. In the new regulations, the DOL placed special emphasis on consistency, indicating this would be an enforcement focus going forward.
• Ensure that job descriptions are current and complete so that the employer can leverage the fitness for duty certification and the expanded medical certification form.
• Ensure that general releases include a waiver of retrospective FMLA rights.
• Obtain new FMLA forms and/or revise existing forms.
• Obtain and post a new FMLA poster.

Mark Blondman and Brooke Iley are partners in the Employment, Benefits and Labor practice at Blank Rome LLP in Washington, DC. Blondman may be reached at [email protected] or 202-772-5800, Iley may be contacted at 202-772-5816 or [email protected].

In November 2008, the U.S. Department of Labor published revised regulations to the Family and Medical Leave Act (FMLA or the Act) for the first time in the Act's 15-year history. The much anticipated regulations are over 750 pages long and take effect on Jan. 16, leaving scant time for employers to implement new procedures to comply with the law. The most significant of these changes are addressed herein.

Top Five Changes

New Entitlements to Military FMLA Leave

The National Defense Authorization Act (NDAA), signed by President Bush last January, amended FMLA to provide two new entitlements, military caregiver leave and qualified exigency leave. Both of these new leaves may be taken on an intermittent or reduced schedule basis. The new FMLA regulations define these leaves as follows:

Military Caregiver Leave

Eligible employees who are family members of “covered servicemembers” may take up to 26 workweeks of leave in a 12-month period to care for a servicemember with a serious illness or injury incurred in the line of duty. A covered servicemember must be a member of the Armed Forces, including the National Guard or Reserves, who has a serious injury or illness for which he or she is undergoing medical treatment, recuperation or therapy; otherwise in outpatient status; or otherwise on the temporary disability retired list. Former members and members on the permanent disability retired list are not covered.

To be eligible, an employee must be the “next of kin” of a covered servicemember, which is defined as the servicemember's nearest blood relative, other than his or her spouse, parent, son or daughter, in a particular order of priority. A covered servicemember may, however, designate in writing another blood relative as “next of kin” for purposes of military caregiver leave. In the absence of a designation, all family members sharing the closest level of familial relationship to the servicemember shall be considered the servicemember's next of kin. This means that when a servicemember has three siblings, all three siblings could be considered next of kin and eligible to take 26 weeks of leave, even if working for the same employer. This definition alone significantly broadens employees who could be eligible for FMLA leave.

Qualifying Exigency Leave

The new regulations also define under what circumstances military families can utilize FMLA leave. Employees with a “covered military member” serving in the National Guard or Reserves may take up to 12 weeks of job-protected, unpaid leave for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status. A covered military member refers only to members of the National Guard or Reserves, not to members of the Armed Forces generally.

The final rule defines what types of events are a qualifying exigency: 1) short-notice deployment in support of a contingency operation; 2) military events and related activities; 3) non-routine childcare and school activities; 4) financial and legal arrangements; 5) counseling, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member; 6) spending time with a covered military member who is on short-term, temporary, rest and recuperation leave; 7) post-deployment activities; and 8) activities not encompassed in the other categories, but agreed to by the employer and employee.

Certification Procedures

Medical Certification Process

Under the old regulations, employers were barred from directly contacting health-care providers to discuss medical certifications. Now, employers may directly contact an employee's health-care provider, with some limitations. First, the employer must provide the employee an opportunity to cure any deficiencies in the certification. If the deficiencies are not rectified, the employer must use a health-care provider, human resources professional, leave administrator, or a management official to contact the provider. Under no circumstances, however, may an employee's direct supervisor contact the employee's provider.

Fitness-for-Duty Certifications

Under the current regulations, employers could only require a “simple statement” from the health-care provider regarding the employee's ability to return to work. Under the new regulations, the employer can require the fitness-for-duty report to address the “essential functions” of the job, as long as the employer provides a list of the essential job functions to the employee when leave is originally designated.

With respect to intermittent leave, employers could not require an employee on such leave to submit a fitness-for-duty certification before returning to work. Under the new regulations, employers can require employees on intermittent leave to submit a fitness-for-duty certification before returning to work as often as every 30 days when leave is taken during that time period, if there are reasonable safety concerns present, and the practice or policy is uniformly applied for all leaves of absence.

Recertification Procedures

Previously, employers could generally request a recertification after the durational period specified in the original medical certification passed. Consequently, for many chronic
or lifetime conditions, health-care providers denoted the durational period as “lifetime” or “unknown.” To address this, the new rule permits recertifications every six months in all cases.

New Definitions

Serious Health Condition (Including Changes to Chronic Conditions)

The FMLA includes six different definitions of the term “serious health condition.” The new regulations attempt to clarify three of these definitions. First, when an employee or family member experiences more than three consecutive, full calendar days of incapacity, plus “two visits to a health-care provider,” the rule clarifies that the two visits must occur within 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.

Second, when an employee or family member experiences more than three consecutive, full calendar days of incapacity plus “a regimen of continuing treatment,” the rule requires the first visit to the health-care provider take place within seven days of the first day of incapacity.

Third, the definition of “periodic visits” for chronic serious health conditions is now defined as at least two visits to a health-care provider per year.

Notification Procedures

Employer Obligations

The new rule lengthens the time frame that the employer is responsible for designating leave as FMLA-qualifying and for giving notice of the designation to the employee from two business days to five business days. In addition, the final rule revises the “categorical penalty” provision. Previously, when an employer failed to timely designate FMLA leave, some courts required the employer to provide leave beyond the 12-week statutory entitlement. Now, a failure to timely designate leave as FMLA-qualifying will only result in a cognizable claim if the employee suffered individualized harm as a result of a violation.

Employee Obligations

The final rule modifies the current interpretation that employees can 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. Now, an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

New Forms

DOL has issued the following new/revised forms: Certification of Health Care Provider for Employee's Serious Health Condition (WH-380E); Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380F); Notice of Eligibility and Rights & Responsibilities form (WH-381); Designation Notice to Employee of FMLA Leave (WH-382); Certification of Qualifying Exigency for Military Family Leave (WH-384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

Other Key Changes

Coverage and Eligibility

To be eligible for leave, an employee must have been employed by the employer for at least 12 months. The existing regulation provides only that the 12 months need not be consecutive. The new rule clarifies that employment periods prior to a break in service of seven years or more need not be counted, except if the employee's break in service is occasioned by the fulfillment of his or her National Guard or Reserve military service obligation; or a written agreement, including a collective bargaining agreement, exists concerning the employer's intention to rehire the employee after the break in service (e.g., for purposes of the employee furthering his or her education or for childrearing purposes).

In addition, the new rule clarifies that an employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for any FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.

Substitution of Paid Leave

Generally, FMLA leave is unpaid leave; however, employees can substitute accrued paid leave for FMLA leave. Previously, employers could place no restrictions on the substitution of paid leave for FMLA leave. The revised rules clarify that employees may substitute the applicable paid leave by complying with the terms and conditions of the employer's normal leave policy. For example, if an employer's paid sick leave policy prohibits the use of sick leave in less than full-day increments, employees would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave. Or, if the policy requires two days notice for personal time off, that notice requirement would still apply for using paid leave concurrently with FMLA leave. The new rules require employers to notify employees of any procedural requirements for the use of paid leave.

Practical Steps to Assure Compliance

Although these are the most significant changes, employers must become familiar with all of the revisions and should have implemented a compliance plan before the rules go into effect on Jan. 16, To ensure compliance and to take full advantage of the new rules, corporate counsel and HR executives are encouraged to:

• Ensure that their HR Department or leave administrator is trained on the new regulations.
• Ensure that the new FMLA policies and procedures are applied consistently. In the new regulations, the DOL placed special emphasis on consistency, indicating this would be an enforcement focus going forward.
• Ensure that job descriptions are current and complete so that the employer can leverage the fitness for duty certification and the expanded medical certification form.
• Ensure that general releases include a waiver of retrospective FMLA rights.
• Obtain new FMLA forms and/or revise existing forms.
• Obtain and post a new FMLA poster.

Mark Blondman and Brooke Iley are partners in the Employment, Benefits and Labor practice at Blank Rome LLP in Washington, DC. Blondman may be reached at [email protected] or 202-772-5800, Iley may be contacted at 202-772-5816 or [email protected].