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Final FMLA Regulations
The United States Department of Labor (DOL) has issued final regulations under the Family and Medical Leave Act (FMLA) that will take effect on January 16, 2009. The final regulations include guidance regarding the military family leave entitlements that were part of the National Defense Authorization Act of 2008 (NDAA). Following are summaries of some of the more significant regulatory changes.
Military family leave
- Military caregiver leave - The FMLA, as amended by the NDAA, provides up to 26 weeks of leave within a 12-month period for an eligible employee who is the spouse, son, daughter, parent, or next of kin of a "covered servicemember" to care for the servicemember who is receiving treatment for a "serious injury or illness" incurred in the line of duty that "may render the member medically unfit to perform the duties of [his or her] office, grade, rank, or rating." A description of the medical certification process for covered servicemembers and a prototype certification form are included at Appendix H of the regulations.
- Qualifying exigency leave - As amended by the NDAA, the FMLA provides leave for a qualifying exigency that arises from the fact that an employee's spouse, son, daughter, or parent 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 (not service by members of the Regular Armed Forced on active duty status). The definition of "qualifying exigency" contains broad categories of events for which employees may take leave, including short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and additional activities on which the employer and employee agree.
Employer notice obligations
- General notice - The revised prototype poster provided in the regulations (at Appendix C) now also serves as the "general notice" that employers must include in any handbooks or other written materials concerning benefits and leave that they provide to employees.
- Eligibility notice - Employers are required to provide notice to employees of their eligibility or non-eligibility for FMLA leave within five business days after the first instance in the 12-month FMLA leave year when the employee requests leave for a qualifying reason.
- Rights and Responsibilities notice - Employers generally must provide this notice at the same time as the eligibility notice. The notice must include any requirements for use of paid leave, the employer's 12-month FMLA leave year, and whether the employer will require periodic status reports. Any medical certification form that the employer will require must accompany the rights and responsibilities notice. (The regulations include a prototype combined eligibility and rights and responsibilities notice at Appendix D.)
- Designation notice - Employers must provide a written designation notice within five days after they receive enough information to determine whether leave is FMLA-qualifying. (Appendix E of the regulations contains a prototype notice.) Employers must notify employees if information in the designation notice changes (e.g., if leave will no longer be designated as FMLA leave because the employee has exhausted his/her leave entitlement).
Employee notice
If the employee gives less than 30 days' notice of foreseeable leave, the employer may require an explanation for the delay. Employers also are permitted to require that employees comply with policies (such as notice policies) for requesting leave "absent unusual circumstances." If employees do not meet the notice requirements, the period of delay may count as non-FMLA absence.
Medical certification process
The regulations increase the timeframe in which employers must request medical certification from an employee from two to five business days after the leave commences, if the leave was unforeseeable. Employers must notify employees if the certification is incomplete or insufficient and identify the additional information needed. Employees then have seven calendar days (with certain exceptions) to correct the deficiencies. Employers may authenticate and/or clarify information in the certification by having human resources staff members, leave administrators, or management officials, but not immediate supervisors, contact the employer's health care provider. The regulations include prototype medical certifications for an employee's own serious health condition and a family member's serious health condition at Appendices A and B.
Fitness-for-duty certifications
In general, the rules regarding fitness-for-duty certification are the same as those for medical certifications. The regulations also permit employers to require a fitness-for-duty certification every 30 or more days during an employee's intermittent or reduced leave if reasonable safety concerns exist.
Serious health condition
The definition of "serious health condition" that involves more than three consecutive, full calendar days of incapacity plus two visits to a health care provider now requires that these two visits occur within 30 days of the beginning of the period of incapacity. In addition, under both the above definition and the definition that involves three consecutive days of incapacity plus a regimen of continuing treatment, the employee's first visit to a health care provider must take place within seven days after the first day of incapacity. The final regulations also add a definition of "periodic visits" for chronic serious health conditions (at least two visits per year to a health care provider).
Substitution of paid leave
Employers now may require employees to follow the requirements for use of all types of paid leave (not just requirements for use of sick leave) in order to use accrued paid leave for the FMLA absence.
Bonuses/Awards
The regulations now permit employers to disqualify employees from bonuses or other payments based on achievement of a specified goal, such as hours worked, products sold, or perfect attendance, where employees do not meet the goal because of FMLA leave (provided that non-FMLA leave also disqualifies employees from the bonus or award).
Waiver
The regulations confirm that employees may waive their FMLA rights retrospectively but not prospectively. Retrospective waivers do not require DOL approval.
The above-described changes are only a few of the many alterations made in the revised regulations. For further guidance on specific questions about the revised regulations or for assistance in reviewing and revising your policies, please contact any one of the following Gallagher Employment attorneys:
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