• New FMLA Regulations Provide Guidance on Military Leave Obligations and Also Clarify Employer and Employee Rights and Responsibilities under the FMLA
  • December 18, 2008 | Author: Deborah Samuels Freeman
  • Law Firms: Bingham McCutchen LLP - Hartford Office; Bingham McCutchen LLP - New York Office
  • On November 17, 2008, the United States Department of Labor published its final rule implementing the National Defense Authorization Act (“NDAA”), the law amending the Family and Medical Leave Act (“FMLA”) to allow family members military leave. The final rule, which becomes effective January 16, 2009, also revises the FMLA regulations for the first time since the FMLA took effect in 1993. The FMLA grants to eligible employees who work for an employer with 50 or more employees, up to twelve weeks of unpaid leave during a 12-month period (a) for the birth and care of the newborn child of an employee; (b) for placement with the employee of a child for adoption or foster care; (c) to care for an immediate family member (spouse, child or parent) with a serious health condition; or (d) to take medical leave when the employee is unable to work because of a serious health condition.

    The NDAA is significant because it adds two additional reasons for leave: (1) up to 12 weeks of leave because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation (“Qualifying Exigency Leave”), and (2) up to 26 weeks of leave for the spouse, son, daughter, parent or next of kin of a covered service-member to care for the service-member (“Military Caregiver Leave”).

    Qualifying Exigency Leave

    “Qualifying exigency” includes the following seven general categories and also includes any other reason for leave agreed to by the employer and the employee:

    • Short notice deployment. Leave to address any issue that arises from a covered service-member's notification of an impending call or order to active duty seven or fewer calendar days prior to the date of deployment.
    • Military events and related activities. Leave to attend any official ceremony, program, or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations or the American Red Cross.
    • Childcare and school activities. Leave to arrange for alternative childcare when the active duty or call to active duty necessitates a change in existing childcare arrangements, provide childcare on an urgent basis, enroll the child in or transfer the child to a new school or day care facility, or attend meetings with staff at a school or a day care facility.
    • Financial and legal arrangements. Leave to prepare and execute financial and health care powers of attorney, transfer bank account signature authority, enroll in the Defense Enrollment Eligibility Reporting System, obtain military identification cards, prepare or update a will or living trust, or act as the covered military member’s representative before a federal, state or local agency for purposes of obtaining, arranging or appealing military service benefits while the covered service-member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered service-member’s active duty status.
    • Counseling. Leave for counseling for oneself, the covered service-member or the covered service-member's child provided by someone other than a health care provider as defined by the FMLA (e.g., religious leaders or military service organization personnel).
    • Rest and recuperation. Leave for up to five days each time a covered service-member receives time off for rest and recuperation.
    • Post-deployment activities. Leave to attend arrival ceremonies, reintegration briefings and events or any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered service-member’s active duty or to address issues that arise from the death of a covered service-member while on active duty status.

    Employers may require that employees requesting a leave provide a copy of the covered service-member’s active duty orders or other documentation issued by the military indicating that the covered service-member is on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation as well as the dates of the covered service-member’s active duty service. The Department of Labor has published a form, Form WH-384, that employers may use for this purpose.

    Military Caregiver Leave

    The regulations also implement provisions concerning FMLA leave for family members to care for covered service-members with serious injury or illness incurred in the line of duty. This category of leave is much broader than that under the traditional FMLA and includes the service-member's spouse, son, daughter and next of kin. Unlike the existing FMLA definition of son or daughter, which only covers sons or daughters who are over 18 if they are incapable of self-care because of a mental or physical disability, a son or daughter of any age may take leave to care for a covered service-member. Also, “next of kin” includes, in the following order of priority: blood relatives who have been granted legal custody of the covered service-member, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service-member has specifically designated in writing another blood relative for purposes of military caregiver leave.

    The regulations clarify that the “single 12-month period” for military caregiver leave begins on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. The regulations further provide that an eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in a “single 12-month period,” provided that the employee may not take more than 12 workweeks of leave for any other FMLA-qualifying reason.

    As with leave for qualifying exigencies, employers may require that the employee taking military caregiver leave provide certification of the service-member's serious injury or illness from an authorized health care provider. The Department of Labor has created a form, Form WH-385, for employers to use for this purpose.

    Regulatory Changes

    Some of the key revisions to the FMLA by topic area are:

    Bonus and Attendance Awards. Employers may now disqualify an employee from a bonus or other payment based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, where the employee has not met the goal due to FMLA leave, provided the bonus or payment is not otherwise paid to employees on comparable non-FMLA leaves.

    Determining where an employee works. Employees are eligible for FMLA leave only if they work for an employer who employs at least 50 employees within a 75-mile radius. The regulations explain that the worksite of a jointly employed employee is the primary employer’s office where the employee reports unless the employee has worked for a year at the location of a secondary employer. With respect to employees who work from home, the regulations explain that employees' personal residences are not their worksites. Instead, employees who work at home are deemed to work in the office to which they report and from which assignments are made.

    Eligibility. Employees are eligible for FMLA leave if they have been employed by an employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the request for leave. The FMLA is silent as to whether the 12-month period must be continuous and the regulations now explain that the 12-month period may include time previously worked for an employer so long as the time worked was no more than seven years ago.

    Employee Notice. Under the prior regulations, employees whose need for FMLA leave was unforeseeable were permitted to inform employers of the need for FMLA leave up to two business days after they took leave. Pursuant to the new regulations, employees whose need for FMLA leave is unforeseeable must follow their employer's usual and customary call-in procedures for reporting unscheduled absences.

    Employer Notice. Employers are required to post the FMLA poster conspicuously in the workplace and provide notice of an employee's FMLA rights through their employee handbook, or if they do not have a handbook, provide a copy of a general FMLA notice upon hire. Once an employee requests FMLA leave or an employer has reason to know an employee is eligible for such leave, an employer is required to provide, within five days, an eligibility notice and a rights and responsibilities notice. Employers are also required to provide a designation notice within five days of the date they have sufficient information to determine whether the leave is FMLA-qualifying (e.g., after receiving medical certification). Employers may provide the designation notice with the eligibility and rights and responsibility notices. The DOL has also provided forms for these purposes.

    Fitness-for-Duty. Employers may specifically require that a return-to-work certificate state that the employee can perform the essential functions of the employee’s job and, when reasonable job safety concerns exist, employers may require that employees on intermittent leave provide fitness-for-duty certifications before returning to work.

    Intermittent Leave. Employers may account for intermittent leave using the shortest time period used for other types of leave so long as the increment is no more than one hour. For example, if an employer monitors employee work time on a quarter hour basis, but uses a one-hour minimum increment for sick or vacation time, the employer may use one hour as the minimum FMLA increment for intermittent leave provided, of course, that the employee does not perform work during the hour.

    Light Duty. The regulations now clarify that time spent in “light duty” does not count against an employee's FMLA time, and that the employee's right to job restoration is held in abeyance during the light duty period.

    Medical Certifications. Employers now have five days, instead of two, to request certification after an employee requests FMLA leave. An employer's human resource officials, leave administrators or management officials may contact health care providers to verify information on medical certification forms so long as Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) requirements and medical privacy regulations are met. These employer representatives may only contact the employee's health care provider to confirm that the information contained in the certification form was completed by the health care provider and to understand the handwriting on the response or the meaning of a response. Employees may, however, refuse to permit an employer to communicate directly with their health care providers. If an employee does not clarify the employer's questions regarding the certification and prohibits the employer from contacting the health care provider, the employer may refuse to grant FMLA leave.

    Recertification and New Certifications. Employers may request that employees whose health care providers indicate that the duration of their serious health condition is longer than six months have their health care providers recertify their serious health conditions every six months. Employers may also require new certifications on an annual basis for conditions lasting longer than a year and new certifications. Recertifications, unlike new certifications, may not be subject to second and third opinions.

    Waiver. The Department of Labor has reaffirmed its position that employees may settle or release FMLA claims based on past employer conduct absent approval by the DOL or a court. The DOL disagrees with the Fourth Circuit's decision in Taylor v. Progress Energy. However, because the Supreme Court declined to review the Taylor decision on June 16, 2008, the state of the law regarding FMLA releases thus remains in flux, and employers are advised to consult with counsel before seeking any release of an FMLA claim.

    Significance for Employers

    Employers should update their FMLA policies to include leave for qualifying exigencies as well as military caregivers and verify that policies comply with the new regulations. In light of the many and often complicated obligations employers have when presented with a request for FMLA leave, employers should quickly contact employment counsel to ensure proper compliance with the FMLA when an issue arises.