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New Family and Medical Leave Act Regulations

Author: Lynn Perry Parker Date: 01/15/2009

Categories: Employment Law & Litigation

The first material revisions to the federal Family and Medical Leave Act (FMLA), since the law was enacted fifteen years ago, will take effect January 16, 2009. The new regulations clarify many of the implementing terms that had caused confusion and costs to both employers and employees. The new regulations also add extensive employment protections to relatives of those serving in the military.

Application of FMLA1: The fundamental qualifying provisions have not changed. All employers with at least 50 employees at the work site or within 75 miles of the work site are subject to the (FMLA) and must grant eligible employees up to 12 weeks of unpaid leave with right of job reinstatement. Eligible employees are those who have worked at least 1,250 hours for the employer for at least one year and who need to take leave for one of the following reasons: (1) the birth of a child and for the purpose of caring for the child; (2) the adoption or foster care placement of a child; (3) the serious health condition that makes the employee unable to perform his/her duties; or (4) to care for a spouse, child or parent with a serious medical condition.

The New Regulations provide clarification and guidance to aid implementation and compliance.

Serious Health Conditions: The six definitions of “serious health condition” remain, but for leave of more than three consecutive full calendar days to qualify as a serious medical condition the employee must receive two treatments by a health care provider within 30 days of the first day of the incapacity or one treatment that results in a regimen of ongoing treatment, with the first treatment, in either case, occurring in the first seven days. For chronic serious health conditions, at least two visits to the health care provider per year are required.

Accounting for Intermittent Leave: Issues surrounding intermittent leave arise frequently and are still difficult to address consistently. The new regulations, however, now make it clear that employers can limit leave increments to the shortest time period the Employer uses to account for absences or leaves, provided the increment is one hour or less.

Light duty: An employee does not lose leave time by accepting a light duty position, nor does the employee waive future rights, including the right to have the original position restored.

Communication is Required

The new regulations make communications between the employer and employee essential.

Requests for Foreseeable Leave: Employees are required to give at least 30 day’s notice when need for FMLA leave is foreseeable that far in advance. If 30 days notice is not possible, then the employee must give notice “as soon as practicable” and provide an explanation, if one is requested, for why it was not possible to give 30 days notice.

Unforeseeable Leave: The regulations make clear that the employer’s usual and customary notice requirements regarding an employee’s unforeseeable need to take leave are enforceable and that the employee has an affirmative duty to provide notice to the employer as soon as possible. Employer’s may delay or deny FMLA leave if an employee does not comply with employer’s procedures and there are no extenuating circumstances that justify noncompliance.3

The new regulations require four different kinds of employer notification:

General Notice of FMLA Rights: Employers must notify their employees of their FMLA rights. The notice should be provided through the required poster displayed in a conspicuous manner in the workplace4 and through the Employee handbook.5 Notice may be given online, but only if the online information is accessible to all employees and job applicants. Notice also must be given in languages used by a “significant percentage” of the work force.6

Eligibility Notice: In response to an employee’s request or apparent need for FMLA leave, the employer must issue an eligibility notice that provides the employee information on whether he or she is eligible for leave. If the employee is eligible, the employer should identify how much leave is available. (An employer is only required to issue one eligibility notice for each qualifying FMLA reason per the leave year.) If an employee is not eligible, the employer must identify at least one reason for the ineligibility.

Rights and Responsibilities Notice: At the same time the eligibility notice is given, the employer must also give the employee the rights and responsibilities notice. This latter notice will advise the employee of the process, including information about the right to substitute accrued paid leave, the requirement to pay health insurance premiums, any certification requirements, and the consequences for noncompliance. The employer will also provide any necessary certification forms.

Designation Notice: Within five days of the initial request, Employer must obtain enough information to make the determination as to whether the requested leave qualifies as FMLA leave and notify the employee accordingly. If the leave is granted, the Designation notice should confirm the amount of leave being granted. This notice must also expressly state whether there are any notice requirements while on leave or whether employee will need to provide a fitness-for-duty certification to return to work. If employer wants such a certification to also specifically address employee’s ability to perform the essential functions of the job, the notice should identify those functions.

Obtaining Medical Certifications

Employers have five business days to request medical certification and the employee has at least 15 calendar days to obtain it.

Employers should not attempt to contact the health care provider directly without a valid Health Insurance Portability and Accountability Act (HIPAA) authorization. If a certification is illegible or unclear, the employer should give the employee the opportunity to remedy the problem directly with the provider.

Requests for fitness-of-duty certifications should be made on a case-by-case basis. Employees on intermittent leave can be required to provide such certificates if the employer has reasonable concerns about the safety of the employee or others. A determination of reasonableness will require consideration of the nature and severity of the potential harm and the likelihood of it occurring.

Expanded Coverage for Military Families

The new regulations expand FMLA protections for military families. Family members caring for a covered service member with a serious injury or illness incurred in the line of duty can take up to 26 workweeks of leave in a 12-month period. The new regulations also help families of the National Guard and Reserves. The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave for “qualifying exigencies.” “Qualifying exigencies” are defined as: (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) additional activities where the employer and employee agree to the leave.

The new regulations for military employees and their families, like the general regulations, identify eligibility, notice, and certification requirements for the new classes of protected employees.

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1 It is important for employers in the District of Columbia to remember that the District of Columbia has its own and much more comprehensive Family Medical leave Act. Employers in the District of Columbia with at least 20 employees must provide 16 weeks of leave for any of the qualifying events. The District of Columbia laws also require employers to provide paid leave.
2 While the FMLA may now more strictly define serious health condition and thereby limit the scope of employees eligible for its protections, employees’ leave rights are being expanded through state and local laws. As we previously advised, Maryland’s new Flexible Leave Act, that took effect October 1, 2008, does not define “illness” and the discussions about the topic among practitioners and legislatures have many concluding that the legislation was intended to fill the gaps left by the FMLA and, as such, the coverage was intended to be quite broad and includes, for example, giving paid leave to an eligible employee to care for a child with a cold.
3 An employer can only benefit from this regulation if the employer has usual and customary notice policies. Therefore such policies should be included in the employee handbook.
4 Posters can be down loaded from the Department of Labor web site for free.
5 The regulations do provide that an employer that does not have an employee handbook may satisfy the notice requirement by giving each employee at the time of hire a copy of the required notice. However, employers with five or more employees should have an Employee Handbook that has been reviewed by legal counsel familiar with the state and local laws of the jurisdiction in which the employer operates.
6 “Significant percentage” is not defined.