The DOL Issues New FMLA Regulations for 2009

On November 17, 2008, the U.S. Department of Labor issued its final regulations interpreting the Family and Medical Leave Act (“FMLA”). The full text of the new regulations is available online at the following website: http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763. These regulations will become effective for all covered employers on January 16, 2009.

The new regulations provide greater clarity to existing regulations. They also implement FMLA leave for family members of military personnel as required by the recently enacted National Defense Authorization Act. Unfortunately, the new regulations do not offer helpful guidance with regard to intermittent leave, a persistent issue for employers. The regulations may also create uncertainty for California employers, since the provisions of the California Family Rights Act (“CFRA”) are not necessarily changed by the new FMLA rules. California’s CFRA regulations provide that, unless inconsistent with other laws, FMLA regulations are incorporated by reference to interpret the CFRA. 2 Cal. Code of Regs. § 7297.10. Thus, at least where the new FMLA provides greater protections for employees, it appears the FMLA regulations will supersede any corresponding but less favorable state regulations that have been used to interpret the CFRA.

Covered employers are encouraged to act quickly to update their FMLA/CFRA policies and practices. The following is a summary of some of the more important changes. Employers with questions about the new FMLA requirements should also consult employment law counsel or experienced Human Resources professionals for guidance.

Joint Employer Coverage – This section sets forth the circumstances under which outside companies that contract with employers to provide administrative services such as employee benefits or payroll will be considered “joint employers” of their client’s employees. The new FMLA regulations clarify that an outside company is considered a “joint employer” only if the outside company has the right to hire, fire, assign, direct or control the employees, OR benefit from the work performed by the client’s employees. 29 C.F.R. §825.106.¹

Eligible Employee – To be eligible for FMLA leave, an employee must be employed for 12 months and must work 1250 hours during the 12 months prior to the start of the leave requested. Under the current rules, the employee does not have to have worked 12 consecutive months with the employer. All prior employment with the employer is counted toward the 12-month eligibility requirement. Except in certain circumstances, the new regulation provides that periods of employment preceding a break in employment of seven years or more are not counted in determining whether an employee has satisfied the 12-month eligibility requirement. 29 C.F.R. §825.110.

In addition, employees who take military leave must be credited for the hours they would have worked but for fulfilling their military service obligations. This “credit” applies to both the 12-month and 1250-hour eligibility requirements.

Serious Health Condition – Under the FMLA, an employee may take leave due to the employee’s own serious health condition, or the serious health condition of a son, daughter, spouse, or parent. The new rules largely retain the definition of “serious health condition.” However, under the current rules, a condition that involves a period of incapacity of more than three days is a “serious health condition” if it also involves either: (1) two or more treatments by a healthcare provider; or (2) one treatment by a healthcare provider within seven (7) days after the first date of incapacity followed by a regime of continuing treatment under the supervision of a healthcare provider. 29 C.F.R. §825.115.

Under the “two or more treatments” part of the definition, the new FMLA rules state that both treatments by the healthcare provider must occur within 30 days of the first day of incapacity, except in limited circumstances. The health care provider, not the employee, must decide whether a second visit within the 30-day period is necessary.

A condition may also be a “serious health condition” if it is a “chronic” condition that requires “periodic” visits to a healthcare provider. The new regulations specify that “periodic” means at least two visits per year to a health care provider.

It is important to remember that rules of this type – narrowing the types of medical conditions that are covered by the FMLA – likely will not apply to the interpretation of the employer’s obligations under the CFRA.

Eligibility/Coverage

Care for a Family Member – The new FMLA regulations provide that an employee does not have to be the only person able to care for a family member with a serious health condition or a covered servicemember. This regulation is consistent with the manner in which the DOL has interpreted the existing regulations. 29 C.F.R. §825.124.

Calculating Used Leave – The new FMLA regulations make several changes to the calculation of FMLA leave entitlements. In general, the new regulations require the employer to divide the number of hours the employee was absent during the week by the number of hours the employee would have worked in the same week, thus providing the leave used by the employee in that workweek. For employees with variable workweek schedules, the new regulation requires the employer to average the employee’s hours over the 12 months preceding the leave, not the 12 weeks preceding the leave (the existing standard). With respect to holidays, the new regulation provides that, if an employee takes leave for an entire workweek that includes a holiday, the employee is charged for the full week of leave, including the holiday. If the employee takes leave of less than a full week, the holiday is not counted against the employee’s FMLA leave unless the employee would otherwise be scheduled to work on the holiday. 29 C.F.R. §825.200.

Overtime – The new FMLA regulation provides that when an employee misses overtime work due to FMLA leave, the overtime may be counted against the employee’s FMLA leave if the employee would be required to work the overtime but for the employee’s FMLA leave. 29 C.F.R. §825.205(c).

Intermittent Leave for Medical Treatment – The new FMLA regulations require an employee who takes intermittent leave because of planned medical treatment to make a “reasonable effort” to schedule the treatment so as to not disrupt unduly the employer’s operations. The existing rule required the employee to “attempt” to do so. The Department of Labor notes that the employee must try to arrange medical treatment so as to accommodate the employer’s needs, but states that the requirement is subject to various exceptions. 29 C.F.R. §825.203.

Substitution of Paid Leave – The new FMLA regulations require employees to substitute paid leave such as vacation for FMLA leave only when the employee is otherwise eligible for paid leave under the employer’s policy. So, if an employer requires that vacation time be scheduled in advance, the employer is not required to allow the employee to substitute vacation time for an unscheduled FMLA leave. 29 C.F.R. §825.207.

FMLA and Bonuses/Raises – Under the new FMLA regulations, employers may condition bonuses or pay increases upon attainment of specified goals, and may deny these benefits to employees who fail to meet these goals due to FMLA leave, provided that the employer does not treat employees who take similar forms of leave more favorable than those who take FMLA leave. 29 C.F.R. §825.215(c)(2).

Waiver/Settlements – The new rules clarify that an employee may waive claims based upon past violations of the FMLA without the approval of a court or the Department of Labor, but employees may not prospectively waive their rights under the FMLA. 29 C.F.R. §825.20220(d).

Light Duty Assignments – Under existing rules, employers are permitted to charge time spent performing light duty assignments against FMLA leave. The new regulation eliminates this practice. Instead, the employee’s right to job restoration is “tolled” during the light duty assignment. If the light duty assignment ends before the employee is able to resume his or her regular job duties, the employee may utilize FMLA leave. This change is important because it may result in the employer having to provide job restoration beyond the 12 weeks permitted under the FMLA in certain instances. If an employee takes four weeks of FMLA leave, works a light duty assignment for ten weeks, and then takes eight more weeks of FMLA leave, the employer would be required to return the employee to his or her job after the employee exhausted FMLA leave; in this case, after 22 weeks. 29 C.F.R. §825.220(d).

Rights and Obligations of Employer and Employee

Employer Notice Requirements – The new regulations consolidate the existing employer notice requirements into one section, with significant revisions. The notice provisions are divided into four requirements: general notice, eligibility notice, rights and responsibilities notice, and designation notice. 29 C.F.R. §825.300.

General notice: The new regulations require employers to post a notice explaining FMLA leave rights. The Department of Labor has prepared a new poster reflecting the new rules. It is available for download at: http://www.dol.gov/esa/whd/regs/compliance/posters/fmla.htm. The new poster must be “posted prominently where it can be readily seen by employees and applicants for employment.” If employees are not literate in English, the notice must be posted in the language in which the employees are literate. Electronic posting is allowed if all employees and applicants have access to the information. If the employer has a handbook or other written employee guidance, the general notice must be included therein. If the employer does not have a handbook or other written employee guidance, general notice must be provided to each employee at the time of hiring.

Eligibility notice: Upon receiving notice that an employee needs leave that may qualify as FMLA leave, the employer must provide eligibility notice to the employee. If the employee is not eligible, the notice must state at least one reason why. The employer must provide the eligibility notice within five business days after receiving notice of the employee’s need for leave, except in certain circumstances. If an employee later needs to take additional leave for the same qualifying reason, the employee remains eligible for leave for that reason, even if he or she would no longer be eligible to take leave for a different reason.

Rights and responsibilities notice: The new regulation requires employers to provide a rights and responsibilities notice each time the employer provides an eligibility notice. This notice must advise the employee that the leave may be counted against available FMLA leave, and of the 12-month period used to calculate leave; of any certification requirements and the consequences of failing to comply; of the employee’s right to substitute paid leave, whether substitution is required, and the employee’s right to take unpaid leave if paid leave is unavailable; of any requirement to make premium payments for health coverage; whether the employee is a key employee and the effect of the designation on the employee’s restoration rights; the employee’s right to maintain his or her benefits during FMLA leave, and to be restored to the same or an equivalent position upon returning from leave; and, the employee’s potential liability for health premiums paid by the employer if the employee fails to return to work after an unpaid FMLA leave.

The form for the notice of eligibility and rights and responsibilities is available for download at: http://www.dol.gov/esa/whd/fmla/finalrule/WH381.pdf.

Designation notice: Within five business days of receiving sufficient information to determine whether a leave qualifies as FMLA leave, the employer must notify the employee whether the leave will be designated FMLA leave. One notice is required for each FMLA qualified reason per 12-month period, irrespective of whether the leave is taken continuously or intermittently. The notice must advise the employee if paid leave will be substituted for unpaid FMLA leave. If a fitness for duty certification will be required before returning from leave, the notice must advise the employee of the same. If the amount of leave is known, the designation notice must inform the employee how much leave will be counted against the employee’s 12 weeks of FMLA leave. If the amount of leave is not known, upon request the employer must advise the employee how much leave the employee has used, but not more often than once during each 30-day period for which leave is taken. Eligibility and designation notices may be provided at the same time if the employer is in a position to do so.

The designation notice is available for download at: http://www.dol.gov/esa/whd/forms/WH-382.pdf.

Failure to Provide Notice – If the employer fails to provide eligibility and/or designation notice, the new regulations follow the Supreme Court’s holding in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). If an employee can demonstrate individualized harm because of the failure to provide such notice, the employee can recover damages. 29 C.F.R. §825.301(e).

Employee Notice Requirements – Under existing regulations, if the need for leave is foreseeable, the employee is required to provide notice of the need for leave 30 days in advance, or “as soon as practicable.” The new regulations allow the employer to require the employee to explain why it was not practicable to provide proper notice in cases where the employee provides less than 30 days notice of foreseeable leave. The employee is obligated to respond to the employer’s inquiry. The new regulations also clarify that “as soon as practicable” means either the same business day or the business day after the employee learns of the need for leave. However, employers must consider all the circumstances when evaluating whether it was practicable for the employee to provide notice earlier than when notice was given. Employers may require employees to comply with the employer’s usual notice and procedural requirements for requesting leave, and may delay or deny FMLA leave when employees fail to follow employer policies, so long as the policies do not require the employee to provide notice earlier than required under the new regulations. There is, however, an exception for “unusual circumstances.” Finally, when an employee seeks leave for an FMLA qualifying reason for which the employer previously allowed FMLA leave, the employee must reference the qualifying reason for the need for leave. 29 C.F.R. §825.302.

Medical Certification – If an employer requires that an employee submit medical certification in regard to a FMLA leave, the new regulations generally require that the request be made within five days after the employee gives notice of the leave. Employers may request certification at a later date “if the employer has reason to question the appropriateness of the leave or its duration.” The employee must return certification within 15 days after the employer’s request, unless it is not practicable to do so, or in cases where the employer extends the time for compliance. The new regulations require the employee to provide a certification that is complete and sufficient. Complete means the certification form is filled in entirely. Sufficient means the information is not vague or ambiguous. If the certification does not meet these standards, the employer must inform the employee in writing of the need for additional information. The employee must be allowed 7 days to provide the information. The employer must allow additional time if it is not practicable for the employee to correct the deficiency in 7 days. If the deficiency is not resolved within the time permitted, the employer may deny the FMLA leave request. The new regulations provide that where an employee seeks FMLA leave for his or her own serious health condition, the employer may include a statement of the essential functions of the employee’s job with its request for medical certification. If the employer does so, the certification may be insufficient if the healthcare provider does not address the essential functions that the employee is unable to perform. Finally, the medical certification form has been revised. The new form requests information including the health care provider’s area of specialization, medical facts regarding the employee’s condition and diagnosis, and certification that intermittent leave is medically necessary, if applicable. 29 C.F.R. §§825.305-307.

Authentication and Clarification of Certification – If the employee provides a complete and sufficient medical certification, the employer may not request additional information from the healthcare provider. The new regulation does allow the employer to contact the healthcare provider for the purposes of authenticating and clarifying the certification. The new regulations allow a human resources professional, leave administrator, or management official to make such contact, so long as the individual is not the employee’s direct supervisor. Authentication means confirming that the information on the certification was prepared or authorized by the healthcare provider. Clarification means inquiring about handwriting or inquiring to understand a response. The regulations require the employer to obtain a release compliant with HIPAA requirements before obtaining personally identifiable health information from a healthcare provider. The employer may deny FMLA leave if the employee fails to provide such a release or otherwise clarify the certification. 29 C.F.R. §825.307.

Recertification – The new regulations permit employers to request recertification as frequently as every 30 days. However, the employer must wait until the original specified duration expires before requesting recertification. If the original certification specifies a period that exceeds six months, the employer may request recertification every six months in connection with an absence. The employer may request recertification more frequently if the employee requests an extension of leave, circumstances change, or the employer receives information causing doubt about the validity of the original certification. Employers are allowed to provide a healthcare provider a record of the employee’s absences, and ask the healthcare provider if the employee’s serious health condition is consistent with the pattern of absences. 29 C.F.R. §825.308.

Fitness for Duty Certification – Employers may require employees to submit to a fitness for duty certification before returning to work following a FMLA leave. Employers may also provide the employee with a list of essential job functions, and require that the fitness for duty certification address the employee’s ability to perform the essential functions. 29 C.F.R. §825.312.

Military Family Leave

Serious Injury or Illness – As we explained in a previous article on this website, the National Defense Authorization Act (“NDAA”) creates two separate types of military family leave. The first type of leave allows eligible employees to take up to 26 weeks of FMLA leave in a 12 month period to care for a servicemember who suffers a “serious injury or illness.” The new regulations clarify that type of leave applies if the servicemember (regular Armed Forces or National Guard) suffers a serious injury or illness in the line of active military service and is either: (1) undergoing medical treatment, recuperation or therapy; (2) in outpatient status; or (3) on the temporary disability retirement list. The new regulations specifically state that Military Family Leave is not available to care for a former member of the Armed Forces, or a member on the permanent disability retired list. The term “serious injury or illness” is defined as a condition incurred in the line of active duty that may render the servicemember medically unfit to perform military duties.

Eligible Employees – Military Family Leave due to care for a “serious injury or illness” is available to a spouse, son, daughter, parent or “next of kin” of a covered servicemember. If a covered servicemember designates a relative as his/her “next of kin,” only that person qualifies as next of kin for FMLA purposes. Otherwise, the “next of kin” is defined as the nearest blood relative other than the spouse, son, daughter or parent. If there are multiple family members with the same level of relationship, all of those family members are eligible to act as “next of kin” under the FMLA.

Calculation of Leave – The 26 weeks of leave available under the FMLA to care for a seriously injured or Ill military member must be taken within 12 months of the first day of leave. If an employee takes 26 weeks of Military Family Leave in one year, he or she may not take an additional 26 weeks of leave the following year, unless the leave is to care for a different covered person, or to care for the same covered person following a new serious injury or illness.

Certification - The new regulations permit the employer to request a certification completed by the military member’s health care provider to support the need for Military Family Leave. The employer may require the health care provider to certify whether the servicemember was injured in active duty, provide the approximate date and probable duration of the injury, and a statement supporting the need for family care. The employer may also require the employee requesting leave to certify his or her relationship to the injured servicemember, the type of care that will be provided, and the estimated duration of the Military Family Leave. An optional certification form is available for download at: http://www.dol.gov/esa/whd/forms/WH-385.pdf.

Qualifying Exigencies – The second type of Military Family Leave authorized by the NDAA applies to “qualifying exigencies.” The new FMLA regulations clarify that this type of leave is available only to a spouse, parent, son or daughter of a member of the National Guard and Reserves on active duty or called to active duty status by the federal government in support of a “contingency operation.” The family of a member of the Regular Armed Forces is not eligible for “qualifying exigency” leave. Eligible employees may use FMLA for any of the following “qualifying exigencies” as defined in the new FMLA regulations (29 C.F.R. §815.126(a)):

Short Notice Deployment – Taking care of issues that arise when a covered servicemember is notified of a call to active duty 7 or fewer calendar days prior to the date of deployment. FMLA leave for this purpose is limited to a maximum of 7 days.

Military Events – Attendance at official ceremonies or programs, family support or assistance programs, and informational briefings.

Childcare and School Activities – Making childcare arrangements, providing childcare on an urgent basis, enrollment or transfer to new school or childcare facility; attendance at meetings with teachers or other school activities.

Financial/Legal Arrangements – Addressing financial/legal matters in the military member’s absence, such as transferring bank accounts, preparing wills/trusts, acting as the military member’s legal representative in legal proceedings or before government agencies (e.g., applications for military benefits).

Counseling – Attending counseling for issues that arise from the military member’s active military duty. This qualifying exigency includes counseling for the covered employee, the military member, or a child of the military member.

Rest and Recuperation – Spending time with a covered military member during leave from deployment. FMLA leave for this purpose is limited to a maximum of 5 days.

Post-Deployment Activities – Attendance at events such as arrival ceremonies and reintegration briefings that occur no more than 90 days following the termination of active duty status. This leave entitlement includes the right to take FMLA leave to address issues that arise from the death of a covered military member, such as funeral arrangements.

Additional Activities – The regulations include a “catch all” provision that permits the use of FMLA leave to address “other” issues related to the servicemember’s military duty, as mutually agreed by the employer and eligible employee.

Certification – The employer may require the employee to provide a copy of the active duty orders or other documentation demonstrating the servicemember’s call to active duty. The employer may also require the employee to submit a certification that includes the anticipated date and duration of the Military Family Leave. A “qualifying exigency” certification form is available for download at: http://www.dol.gov/esa/whd/forms/WH-384.pdf.

Practical Considerations

Compliance with the new FMLA regulations will require employers to act quickly to update personnel policies, employee handbooks, and administrative practices. Most urgently, employers and Human Resources professionals must review and implement the timing and content requirements for the general, eligibility, rights and responsibilities, and designation notices required by the new FMLA regulations.

For California employers, the interaction of the FMLA, the CFRA, and other state leave laws creates additional challenges and unanswered questions. For example, although an employee’s right to family and medical leave under the FMLA and the CFRA typically runs concurrently, it is still unclear whether this applies to Military Family Leave. Consequently, an employee may be eligible for an additional 12 weeks of unpaid leave time under the CFRA during an established 12-month period even though the employee has already exhausted a full 12 weeks of unpaid leave for qualified exigency and/or military caregiver leave under the FMLA.

Similarly, it is unclear whether Military Family Leave under the FMLA runs concurrently with the military spouse leave available under California law (Military & Veterans Code §395.10), which requires employers to provide up to 10 days of leave to the spouse of an individual in the Armed Forces, National Guard or Reserves during the military member’s leave from military deployment.

We are awaiting clarification of these and other issues, either from the California legislature or in regulatory action or interpretive guidance from the Fair Employment and Housing Commission (“FEHC”). In the interim, employers analyzing the interplay of these various federal and state legal requirements are advised to consult employment law counsel.

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1 All references are to the Department of Labor, Wage and Hour Division, The Family and Medical Leave Act of 1993; Final Rule, 29 C.F.R. §825 et seq.