Department of Labor's New Family Medical Leave Act Regulations

On November 17, 2008, the Department of Labor (“DOL”) issued new regulations regarding the Family Medical Leave Act (“FMLA”). The regulations will significantly affect all employers subject to the FMLA, including all private employers with 50 or more employees, all public employers, and all public and private elementary and secondary schools. These new regulations become effective soon—January 16, 2009.

Why Did the Department of Labor Issue New Regulations?

The reasons for the new regulations are basically threefold. First, in January of 2008, the National Defense Authorization Act (“NDAA”) made significant changes to the FMLA. Under the NDAA, employees may take FMLA leave for military caregiving and for “any qualifying exigency” arising out of the fact that an employee’s spouse, son, daughter, or parent has been called to active military duty. The NDAA specifically ordered the DOL to issue new regulations regarding these provisions. Second, the DOL revised the regulations to conform to decisions by the United States Supreme Court and to address other relevant federal court decisions. Third, based on its experiences with the FMLA over the last fifteen years, the DOL believed the regulations could be improved. Note that, in many instances, the DOL has “improved” the regulations by reorganizing them. Therefore, if you are familiar with the FMLA regulations that have been in effect since 1995, beware that the same information may now be found in a completely new section of the regulations.

Qualifying Exigency Leave

As mentioned above, under the NDAA, eligible employees may now take up to 12 weeks of job-protected, unpaid leave in a 12-month period because of “any qualifying exigency” arising out of the fact that an employee’s spouse, son, daughter, or parent is or has been notified of an impending call to active duty in support of a contingency military operation.

The regulations set forth the rules for this new type of FMLA leave.

Application

First, the new regulations make clear that this type of leave only applies when a member of the National Guard, Reserves, or retired military has been called to active duty in support of a federal contingency military operation. It does not apply to current, full-time members of the Armed Forces. Therefore, if an employee is seeking leave to be with her son, a full-time Marine who is being deployed overseas, the FMLA will not apply. On the other hand, if the son who is being deployed is a member of the Air National Guard, the FMLA may apply. As the DOL explained, “In the case of Reservists and the National Guard, those individuals may work elsewhere, but are willing to serve the Federal government if necessary and are willing to allow their lives to be disrupted by a call to active duty. . . . It is the unexpected disruption to their lives that appears to be the focus of exigency leave.”

Types of Qualifying Exigencies

Next, the regulations identify eight types of “qualifying exigencies”: (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) a catch-all category, to address events which may arise out of the active duty, if the employer and employee agree to the leave. Some additional qualifications to these categories of leave exist. For example, leave for a “short-notice” deployment may last no longer than seven calendar days. Additionally, “rest and recuperation” leave, or time to spend with a covered servicemember who is on a short-term leave during the deployment, is limited to five days.

Certification

Employers can verify a call to active duty and require employees to “certify” their need for qualifying exigency leave. For example, employees may be required to provide a copy of the covered servicemember’s active duty orders. Also, employers can require employees to provide a statement, signed by the employee, setting forth appropriate facts supporting the request for leave. As another example, if the employee is seeking leave for a meeting or appointment with a third party, employers may request contact information so the meeting may be verified. The DOL also has created a new, optional certification form (WH-384) employers may use to gather this information.

Intermittent and Reduced Leave

Note that this leave can be taken intermittently or on a reduced leave schedule. Unlike intermittent or reduced leave for planned medical treatment, however, employees are under no obligation to schedule such leave so as to avoid unduly disrupting an employer’s operations, nor may the employee be transferred to an alternative position during such leave.

Military Caregiver Leave

Under the NDAA, employees who are otherwise eligible for FMLA leave can take FMLA leave for military caregiving. More specifically, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember can take up to 26 weeks of job-protected, unpaid leave in a single 12-month period to care for the servicemember if the servicemember is recovering from a “serious injury or illness sustained in the line of active duty.”

The new regulations define these key terms and set out the rules for this new type of FMLA leave.

Application

Military caregiving leave only applies to eligible employees seeking to care for current members of the Armed Forces, National Guard, Reserves, or members of such organizations who are on the temporary disability retired list. Eligible employees may not take FMLA leave to care for former members of the military (or National Guard or Reserves), or members on the permanent disability retired list. The practical effect of this rule is that employees cannot take FMLA leave to care for a servicemember who was injured long ago.

Serious Illness or Injury Sustained in the Line of Duty

Unlike other types of FMLA medical leave, which involve a “serious health condition,” military caregiver leave involves something different: a “serious illness or injury sustained in the line of active duty.” This phrase is defined in the new regulations as an injury or illness incurred in the line of active duty that “may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating.”

Similar to the certification process for other types of FMLA leave related to a medical condition, employers may require employees to provide a medical certification that a covered servicemember suffers from the requisite “serious illness or injury.” Because non-military health care providers may not be informed about the job duties at issue, the certification, must come from a health care provider who is capable of making the needed assessment, such as a United States Department of Defense health care provider, or a United States Department of Veterans Affairs health care provider. The DOL also has created a new, optional certification form (WH-385) employers may use for this purpose.

Calculation and Amount of Leave

The calculation of the amount of military caregiver leave is completely different from the calculation of other types of FMLA leave:

First, employees get 26 weeks of leave, not 12.

Second, the leave is granted on a one-time, per injury, per covered servicemember basis. It is not recurring. In other words, if a covered servicemember is injured, an employee only may take military caregiving leave once, even if the servicemember’s condition does not improve. The only way an employee can take this type of leave more than once is if the servicemember suffers an additional, separate injury or illness, or a completely different servicemember is involved.

Third, the single 12-month period described in the NDAA begins the first date an eligible employee takes FMLA leave to care for a covered servicemember, and ends 12 months after that date, regardless of the method the employer normally uses to determine an employee’s 12 workweeks of FMLA leave.

Additionally, if leave qualifies as military caregiver leave and another type of leave allowed by the FMLA (such as, for example, FMLA leave to care for an immediate family member who has a serious health condition), the employer must designate such leave as military caregiver leave in the first instance. After such leave is exhausted, other types of FMLA leave may apply. Note, however, that the total amount of FMLA leave an employee may take in the “single 12-month period” is 26 weeks, even if other types of FMLA leave apply. The practical effect of these provisions is that FMLA leave may be very difficult to calculate when military caregiver leave intersects with other types of FMLA leave.

Intermittent and Reduced Leave

Also, similar to other types of FMLA medical leave, military caregiver leave can be taken intermittently or on a reduced leave schedule when medically necessary.

Next of Kin

A new relationship has been identified as eligible for leave: “next of kin.” The new regulations define “next of kin of a covered servicemember” as the servicemember’s nearest blood relative other than spouse, parent, or child, in the following order of priority: (1) blood relatives who have been granted legal custody of the covered servicemember by court order or statute; (2) siblings; (3) grandparents; (4) aunts and uncles; and (5) first cousins. These rules apply unless the servicemember has specifically designated another blood relative in writing to be his or her nearest blood relative for purposes of military caregiver leave. If no such designation has been made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members are considered the “next of kin” and may take FMLA leave, either consecutively or simultaneously.

Notice Requirements

In addition to the provisions regarding the new types of leave created by the NDAA, a key focus of the new regulations is notice. The DOL wants employers to do a better job of providing employees with notice of their FMLA rights, and wants employees to do a better job of informing employers of their need for FMLA leave. Accordingly, the DOL has revised the notice requirements. Highlights of these changes are:

• The DOL has issued three new optional forms employers may use to satisfy all of the notice requirements.
• If an employer is covered by the FMLA but does not have an employee handbook or similar written materials describing employee benefit ts or leave rights, a general notice of FMLA rights must be distributed to each new employee upon hiring.
• After an employee requests FMLA leave, or an employer gains knowledge that an employee’s leave may be FMLA qualifying, an employer now has five business days, rather than two, to inform the employee of his or her eligibility for FMLA leave.
• If an employer determines an employee is not eligible for FMLA leave, the employer must give the employee at least one reason why the employee is not eligible.
• After receiving enough information to determine whether leave is FMLA-qualifying (such as, after receiving a completed medical certification), employers now get five business days, instead of two, to designate the leave as FMLA leave or not.
• The FMLA designation notice must state how much leave will be counted as FMLA leave and any requirement to provide a fitness for duty certification.
• The new regulations clarify an employee’s existing obligations to provide advance notice of FMLA leave, and state that if an employee does not give the requisite notice, he or she may be required to explain why. Also, the regulations emphasize that unless the employee has a good reason, an employee must follow an employer’s usual and customary procedures for reporting an absence. FMLA leave is not a “free pass” to ignore the employer’s procedures.