The U.S. Department of Labor issues final FMLA rules

--This is great information here on the updates to the Family Medical Leave Act, especially for our brothers and sisters in blue who serve in the military. The article provides a synopsis of changes. The 201 page act is in PDF format and the link is in the article--
Duke

Legal Insights for Local Governments (Winter 2009)

by David Zafiratos

On November 17, 2008, the U.S. Department of Labor published amendments to the regulations implementing the Family Medical Leave Act (“FMLA”). These regulations, which became effective on January 16, 2009, clarify existing FMLA leave requirements and implement military family leave. The Department of Labor has made the final rules available in PDF format at the following website address:

http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763

The new regulations either change or clarify several issues that arise under the FMLA, including substitution of paid leave, light duty, the definition of a Serious Health Condition, employer and employee notice requirements, and medical certification requirements.

In the past, confusion existed over what type of paid leave -- sick leave, personal leave, or vacation leave -- could be substituted for FMLA leave. For example, employees could substitute paid sick leave for FMLA leave because of their own serious health condition, but could not substitute paid sick leave for FMLA leave for absences related to the birth of a child. The changes to Section 825.207 now permit employees to substitute paid leave as determined by the terms and conditions of the employer’s normal leave policy. Employers should keep this rule in mind when establishing paid leave policies. Additionally, an employer is still authorized to require employees to substitute and exhaust any accrued paid leave while on FMLA leave.

Optional light duty assignments in the context of the FMLA have also changed. Previously, some courts had interpreted Section 825.220 to mean an employee on voluntary light duty for a serious health condition could be considered on FMLA leave. Section 825.220 now states that employers may not count time used by an employee on voluntary or optional light duty against the employee’s twelve (12) weeks of FMLA leave.

Under the FMLA, a serious health condition includes an incapacity that requires treatment two or more times by a health care provider. The new regulations address the phrase “treatment two or more times,” and include a new requirement that the two or more treatments occur within thirty (30) days of the first day of incapacity. An employee attempting to base a serious health condition on an incapacity which required two or more treatments greater than thirty (30) days apart will fail to satisfy that definition.

The previous regulations contained several sections devoted to the employer’s responsibility to provide notice to employees of their FMLA rights. However, the new rules combine all those regulations under Section 825.300 including clarification of the pre-existing employer notice requirements.

First, employers will now be required to post a general FMLA notice in the workplace. Second, if an employer has a written employee handbook or policy manual, the employer must provide new employees with its written FMLA policy at the time of hire. Employers are allowed to distribute their written FMLA policies electronically.

Employers have always been required to notify an eligible employee of the right to FMLA leave when the employer knows a leave of absence may qualify. The previous regulations required notification to occur within two (2) days. Section 825.300 now allows employers five (5) days to notify employees that they may be entitled to FMLA leave.

Employees are required to notify employers of the need for FMLA leave within a certain time frame. With regard to unforeseeable leave, employees are required to give notice as soon as possible. Prior regulations permitted employees to notify employers of the need for FMLA leave up to two (2) days after an absence, even when earlier notice was possible. Now, Section 825.303 requires employees to follow “the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” That Section also states an employee’s unjustified failure to abide by the employer’s call-in procedure may allow employers to deny or delay FMLA leave.
The new regulations change several aspects of the medical certification process for FMLA leave taken because of a serious health condition. First, taking into account the Health Insurance Portability and Accountability Act (HIPAA) as it pertains to communications between an employer and an employee’s health care provider, the new regulations prohibit an employee’s direct supervisor from contacting the health care provider. Also, employers must limit their inquiries to information required by their FMLA certification forms. The standard Department of Labor certification form has been updated.

The regulations also officially change the ability of employers to require periodic re-certification of medical conditions. Since employees are entitled to twelve (12) weeks of FMLA leave every twelve (12) months, employers have often sought to obtain re-certification of medical conditions every year for conditions lasting longer than one year. The new regulations follow a Department of Labor opinion letter stating that employers may request re-certification every six months.

The FMLA now allows employees to take FMLA leave for a “qualifying exigency” caused by a family member’s call to active duty in support of a contingency operation, or to care for a covered servicemember if that person is the employee’s spouse, son, daughter, parent, or next of kin. These two types of military family leave are known respectively as qualifying exigency leave and military caregiver leave.

The addition of “qualifying exigency leave” is intended to help families of members of the National Guard and Reserves make the necessary arrangements to manage their affairs when the servicemember is called to active duty in support of a contingency operation. The term “qualifying exigency,” left undefined by the FMLA when the military family leave provisions were added in early 2008, is defined by Section 825.126 of the final rules. The following items are now listed as qualifying exigencies: “short-notice deployment,” “military events and related activities,” “childcare and school activities,” “financial and legal arrangements,” “counseling,” “rest and recuperation,” “post-deployment activities,” and a catchall - “additional activities.” Section 825.126 includes details on each particular qualifying exigency leave. Most of these categories are self-explanatory.

The FMLA now allows eligible employees to take up to twenty-six (26) workweeks of leave in a single twelve (12) month period to care for an injured servicemember. Section 825.127 of the final rules helps to clear up some uncertainty surrounding the phrase “26 workweeks in a single 12-month period.” The rule explains that a “single 12-month period” begins on the first day an eligible employee takes FMLA military caregiver leave and ends 12 months after that date. Any unused leave is forfeited after 12 months.

The Department of Labor has also created certification forms for compliance with the FMLA’s military family leave certification requirements. These forms have been published as Appendices G and H to the final FMLA regulations.