FMLA

On Monday, Nov. 17, 2008, the Department of Labor (DOL) published the long-awaited revisions to the Family and Medical Leave Act (FMLA). After years of discussion and an extensive comment period, the new regulations provide a few significant changes, as well as many clarifications and minor adjustments in FMLA administration. All covered employers must adapt their policies to be in compliance when the new regulations go into effect on Jan. 16, 2009.

Military Caregiver Leave

The most significant changes to the FMLA involve the new provisions allowing two kinds of military-related leave. First, the FMLA now provides up to 26 weeks of unpaid leave in a 12-month period to eligible employees to care for a military service member suffering from an injury or illness incurred in the line of active duty. Importantly, the 12-month time period in which this leave is available is calculated differently than traditional FMLA leave under the employer`s regular policy. This 12-month period is calculated beginning on the first day an eligible employee commences leave to care for a covered service member with a serious injury or illness and ends 12 months after that date, regardless of the method used by the employer to calculate the 12-month period for other FMLA leave.

This provision also deviates from traditional FMLA leave by expanding the employees eligible for this leave to include the next of kin to the covered service member. The phrase ``next of kin`` means the nearest blood relative to the covered service member, or the blood relative designated as next of kin by the service member. Thus, the ``next of kin`` may be a cousin, uncle or grandparent, or another family member not included in the scope of those eligible for traditional FMLA leave. Notably, a husband and wife employed by the same company are entitled to an aggregate leave of 26 weeks under this provision.

Notice requirements for Military Caregiver Leave are closely regulated. The DOL will promulgate optional forms that employers may use; however, if an employer chooses to use its own form, it may not request more information than permitted under the regulations. Moreover, unlike traditional FMLA leave, employers may not request intermittent recertifications, nor may the employer require a second or third medical opinion prior to approving leave.

Qualifying Exigency Leave

In addition to Military Caregiver Leave, the revised FMLA also provides up to 12 weeks of unpaid leave to spend time with a covered service member in the event of a ``qualifying exigency.`` A qualifying exigency includes the following events when related to active duty or a call to active duty:

• Short notice deployment;
• Military events and related activities, including ceremonies and programs;
• Arranging for childcare and participation in school activities;
• Making financial and legal arrangements;
• To attend counseling;
• Rest and recuperation;
• Post-deployment activities; and
• Additional activities, which includes other events arising out of the covered service member`s call to active duty.

This leave is designed to allow families to make necessary arrangements and to spend time with covered service members prior and subsequent to deployment. Unlike Military Caregiver Leave, this leave is capped at the traditional 12-week period. Qualifying Exigency Leave also differs from the traditional FMLA leave in that the notice requirements are different. Employers may require certification in the form of active duty orders or other military documentation, but may not request recertification. In addition, the DOL is promulgating an optional form for use in obtaining certification for this leave.

Other Changes to the FMLA

The DOL also included a number of clarifications and minor changes in the revised FMLA as well as providing these new types of leave.

Eligible Employees. The DOL revised the method of calculating the time period served by an employee to determine eligibility. To be an eligible employee, one must have worked 1,250 hours in 12 months. Under the new regulations, employers must consider employment periods prior to a break in service of up to seven years, and even longer if the break is due to military service, when calculating the number of months of employment. The practical impact of this change is not only that employers must adjust the manner of determining eligibility, but also that records may need to be retained for longer periods of time to allow computation of prior periods of employment.

Serious Health Condition. The DOL did not make any major changes to the definition of a serious health condition. However, the regulations do clarify that an employee seeking leave who is suffering from a period of incapacity for more than three days must make two visits to a health care provider, and the first visit must occur within seven days of the first day of incapacity. Likewise, those serious health conditions requiring a regimen of continuing treatment must also be combined with a visit to a health care provider within seven days of the start of the period of incapacity.

Certification. The certification requirements have also been clarified under the revised regulations. Employers may now contact a health care provider directly, rather than through a health-care practitioner, to confirm or clarify a certification provided by the employee. The right of contact is not unlimited, however, and must be restricted to the employer`s human resources professional, management, or leave administrator, or to a health care provider. Under no circumstances may an employee's direct supervisor be the person contacting the health care provider. Small businesses must be especially vigilant when making contact with the health care provider to ensure that the employee`s direct supervisor is not making the contact, as supervisors are often members of a company`s management or human resources team. In addition, any request for recertification or additional information must be made in writing by the employer, and must specify the deficiency in the certification.

Employer`s Notice Obligations. The revisions to the employer`s notice obligations are especially important in ensuring compliance with the revised regulations. The FMLA now requires employers to issue four mandatory notices. As an initial matter, employers are still required to issue a general notice of FMLA rights, including hanging a poster in a common area and including the FMLA information in the company handbook. If no handbook is provided to employees, then all employees must be provided a specific FMLA notice upon hire.

Employers must provide an ``Eligibility Notice`` to all employees who may be in need of FMLA leave within five business days of learning of the need for leave. This notice must specify whether the employee is eligible for leave and, if not, must specify at least one reason why the employee is ineligible. While the notice is more substantive, the new regulations provide an extension of the need to designate from two days to five.

Furthermore, employers must provide notice of the employee`s rights and responsibilities. This notice must detail the employee`s obligations, and the consequences for failing to comply with the requirements. At a minimum, the notice must state the leave may be designated as FMLA and counts against the annual leave entitlement, any certification requirements, the employee`s right or requirement to substitute paid leave, and benefits information. Employers are encouraged to provide the certification forms it requires to approve FMLA leave along with this notice of rights and responsibilities.

Finally, employers must issue a ``Designation Notice.`` This notice must identify whether the employer is designating the leave as FMLA leave, and must be issued within five business days of receiving the information necessary to make the determination (e.g., within five days of receiving the medical certification form). Importantly, this notice must also include any restrictions the employer wishes to place on leave, such as the requirement for a fitness for duty certification prior to the employee's return.

Failure to provide any of these required notices may result in a finding of interference with or denial of an employee`s FMLA rights. The FMLA requires employers to act quickly in designating both eligibility and the terms of FMLA leave. As a result, employers must maintain easily accessible, up-to-date employment records, and also be prepared with FMLA-compliant notices and forms prior to the need arising. Under the new regulations, if an employer fails to properly designate leave under the FMLA, it may be liable for any harm caused to the employee.

Other Changes. In addition to the revisions listed above, the DOL has also made some minor changes. For example, the DOL has clarified that employees must follow the employer`s normal and customary procedures for notifying the company of an absence, even at the start of an FMLA qualifying event. Moreover, the DOL has confirmed that light-duty work does not count against an employee`s 12-week leave entitlement. Finally, the new regulations expressly allow for a waiver of FMLA claims in a voluntary settlement agreement between an employee and employer, provided the employee is not waiving any prospective, or future, FMLA claims or rights.

Practical Impact

It is incumbent on employers to react quickly both to the change in the law as well as to employee requests for leave. We recommend that all employers covered under the FMLA seek assistance in reviewing and revising their current FMLA policies in advance of the law`s implementation to ensure all policies conform to the revised Act. In addition, forms currently in use for FMLA leave should be evaluated ahead of time because the Act does not allow ample time to revise these forms once the need becomes apparent. It is crucial that any form an employer elects to use does not seek any information in excess of that expressly allowed under the regulations, but also protects the company by informing employees of the limits on the rights granted under the FMLA.

Specifically, each company must revise its FMLA policy to reflect the available Military Caregiver Leave and Qualifying Exigency Leave, as well as update all necessary forms to include these leaves. Second, covered employers should review their current record keeping practices to ensure it allows for quick analysis of whether an employee is eligible for leave. Finally, all employers should train their management, human resources groups and front line supervisors in the new timelines and requirements of the FMLA because extensive liability, including personal liability, is still part of the revised FMLA for any interference or retaliation related to the FMLA.