• Are you Complying with the New FMLA Regulations?
  • April 28, 2009 | Author: Deborah P. Kelly
  • Law Firm: Dickstein Shapiro LLP - Washington Office
  • The U.S. Department of Labor (“DOL”) recently issued the first significant revisions to the Family and Medical Leave Act (“FMLA”) since the law was enacted. These regulations are effective January 16, 2009, and will require almost every employer subject to the Act to update their policies and procedures. The revised regulations generally provide employers with greater flexibility to administer FMLA leave and clarify recent legislation relating to leave for service member care and other military family-related events (“exigencies”). The following is a brief summary of the key changes in the regulations. 

    Eligibility

    The revised regulations clarify that an employer must credit an employee who returns from military duty under USERRA with service time and hours s/he would have had but for the military leave.

    The revised regulations also require an employer to provide notice of eligibility and written notice of an employee’s FMLA rights and responsibilities within five business days of learning of the employee’s request or need for such leave.

    Qualifying Circumstances for FMLA Leave

    The revised regulations also clarify some previously ambiguous issues relating to “qualifying circumstances,” and establish detailed rules relating to service member care (“Military Family Care Leave”) and other military-related exigencies (“Military Family Exigency Leave”). For example, the revised regulations:

    • clarify several aspects of the definition of “serious health condition”;
    • provide a detailed list of multiple specific circumstances under which an employee may qualify for Military Family Exigency Leave;
    • clarify that employees may take Military Family Exigency Leave only in relation to a family member who is a reserve servicemember (and not a regular Armed Forces servicemember); and
    • explain that employees may take Military Family Care Leave only in relation to a family member who is a current Armed Forces service member (including Reserves) and not for a retired service member or one who is on the permanent disabled list.

    The revised regulations also require an employer to provide notice of whether leave is designated as FMLA leave, in writing, within five business days after obtaining sufficient information to make the determination regarding the leave qualifies as FMLA leave.

    Amount of FMLA Leave Available

    The revised regulations further clarify the process for determining leave periods for Military Family Care Leave. For example, the revised regulations:

    • explain the treatment of holidays during FMLA leave;
    • clarify that the “single 12-month period” in which an employee may take up to 26 weeks of Military Family Care Leave must be applied on a “per injury/per servicemember”; and
    • explain that the “single 12-month period” in which an employee may take up to 26 weeks of Military Family Care Leave must be determined on a “first leave date forward basis,” regardless of the 12-month period calculation used by the employer for other types of FMLA leave.

    The revised regulations also require an employer to provide notice of the amount of FMLA leave available to the employee in the designation notice.

    Reduced/Intermittent FMLA Leave

    The revised regulations generally strengthen an employer’s ability to require an employee to manage reduced and intermittent leave. For example, under the revised regulations:

    • Although the employer may not require an employee to take more FMLA leave than necessary, if it is physically impossible for an employee to commence or end work mid-way through a shift, the entire period that the employee is forced to be absent may be designated as FMLA leave and count against the employee’s FMLA leave amount (e.g., when a flight attendant or a railroad conductor would otherwise be scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed “clean room” during a certain period of time).
    • An employee seeking reduced or intermittent FMLA leave should consult with the employer before scheduling the leave. In this respect, the regulations provide that if an employee who seeks such leave for planned medical treatment fails to consult with the employer, the employer may initiate discussions with the employee and may require him/her to attempt to make alternative arrangements that do not unduly disrupt operations, subject to the approval of the health care provider.

    Employee Notice Requirements

    The revised regulations generally strengthen an employer’s ability to require adequate notice of the need for FMLA leave. For example, under the revised regulations:

    • The employer may require an employee who fails to comply with the 30-day advance notice requirement for foreseeable leave to explain the reasons why such notice was not practicable;
    • It “generally should be practicable” for the employee to provide notice of the need for unforeseeable leave within the time prescribed by the employer’s usual and customary leave notice requirements;
    • The employer may require the employee to comply with the employer’s usual and customary procedural requirements for requesting leave, absent unusual circumstances or an emergency situation that prevents compliance with the policy; and

    Unusual circumstances may include a situation where the employee is unable to comply with the requirement to call a specific call-in number because the voice mail box is full.

    Emergency situations include, for example, a situation where an employee requires emergency medical treatment and cannot get to a phone.

    • When seeking leave due to a FMLA-qualifying reason for which s/he has previously taken FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave.

     
    Employee Certification Requirements

    The revised regulations contain substantial changes to the employee medical (or other) certification requirements, as summarized below:

    Required Notice

    The employer should provide written notice of the need for certification at the same time that it provides the Eligibility Notice and Rights & Responsibilities Notice (i.e., within five business days of the employee’s request for leave or of learning that the employee’s absence may qualify as FMLA leave). The employer may provide oral notice of any subsequent recertification requirements.

    Sample Forms

    The DOL has provided the following recommended certification forms: Medical Leave, Family Care Leave, Military Family Exigency Leave, and Military Family Care Leave.

    Process Steps

    Employers and employees must follow a more detailed, step-by-step certification process, as summarized below:

    Step 1: Employer Request for Certification (within five business days of learning of need for leave).

    Step 2: Employee Submission of Certification (within 15 calendar days of employer’s request, unless impracticable).

    Step 3: Employer Notice of any Deficiencies (must be in writing).

    Step 4: Employee Opportunity to Cure Deficiencies (within seven calendar days of employer’s request, unless impracticable).

    Step 5: Employer Authentication/Clarification or Verification (permitting certain contact with health care provider by the employer’s representative other than employee’s direct supervisor).

    Step 6: Obtaining Second and Third Opinions (generally the same as prior regulations).

    Annual Certification

    If an employee’s need for Medical or Family Care Leave lasts beyond a single leave year, the employer may require him/her to provide a new medical certification in each subsequent leave year.

    Use of Other Information

    Generally, an employer may use information properly obtained in connection with a paid leave/disability plan applicable during the requested leave, ADA reasonable accommodation inquiry related to the requested leave, or workers’ compensation claims processing related to the requested leave for purposes of determining whether the employee qualifies for FMLA leave.

    Recertification Timing

    Generally, an employer may request recertification only in connection with an absence and no more often than every 30 days, or the duration set forth in the original certification, whichever is longer (subject to exceptions for changed circumstances or doubt as to validity of leave request). For example, if the medical certification states that an employee will be unable to work for 40 days, the employer must wait 40 days before requesting a recertification.

    However, in all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Therefore, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a life-long condition, the employer may request recertification every six months in connection with an FMLA absence.

    Recertification Content

    The employer may, in addition to the information permitted for the original certification, provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

    Interaction between Accrued Leave and FMLA Leave

    The revised regulations clarify the interaction between FMLA leave and employer-paid leave, disability plans, and workers’ compensation benefits.

    The revised regulations also require an employer to provide notice of the procedural requirements for any employer-provided paid leave to be used during FMLA leave at the time it provides the required designation notice.

    Reinstatement Requirements

    The revised regulations set specific conditions under which an employer may require a fitness-for-duty certification from an employee taking reduced or intermittent FMLA leave. They also clarify rules regarding payment of bonuses upon reinstatement, essentially codifying prior DOL opinion letters on this issue.

    The revised regulations further require an employer to provide notice of any fitness-for-duty certification requirements at the time it provides the required designation notice.