New Regulations Affect Employer and Employee Rights and Responsibilities Under the Family and Medical Leave Act

The United States Department of Labor (the “DOL”) has issued new regulations that will change employer and employee rights and responsibilities under the Family and Medical Leave Act (the “FMLA”) and the administration of leaves and leave requests.  The new regulations become effective January 16, 2009.  The new regulations will replace the current FMLA regulations, which have been in effect since 1995.

This Client Alert summarizes the more significant changes made by the new regulations.  There are two general categories of changes.  First, the new regulations address amendments to the FMLA that were enacted in January 2008 concerning two types of leaves for family members of those engaged in military service.  Second, the new regulations make numerous changes to the current regulations, including changes in the substantive standards governing leaves and the rules concerning notice and requests for information related to leaves.

New Military-Related Reasons for FMLA Leave for Family Members

The National Defense Authorization Act of FY 2008 (the “NDAA”), which became law in January 2008, included amendments to the FMLA, which expanded the FMLA to allow eligible employees who are family members of those in military service to take FMLA leave for certain purposes.  The NDAA defined those purposes in general terms and, for one of the forms of leave, directed the DOL to define the qualifying circumstances in regulations.

Under the new regulations, eligible employees are entitled to FMLA leave for the following purposes: 

Qualifying Exigency Leave

An employee is entitled to up to 12 weeks of FMLA leave because of any “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty (or has been notified of an impending call to active duty) in support of certain types of military operations as a member of the National Guard or of one of the military’s Reserve components or as a retired member of the Regular Armed Forces or the retired Reserve.  This does not apply to circumstances involving family members of those on active duty status in the Regular Armed Forces.  This leave is referred to in the new regulations as “qualifying exigency leave.”

A “qualifying exigency” includes the following types of circumstances:  (1) issues that arise out of short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) a military member’s rest and recuperation time; (7) post-deployment military and related activities; and (8) any other event that the employer and the employee agree should be a qualifying exigency and agree as to the timing of the leave for that event.

Military Caregiver Leave

An employee who is the spouse, son, daughter, parent or next of kin of a “covered servicemember” who incurs a serious illness or injury in the line of active duty is entitled to up to 26 weeks of FMLA leave to care for the covered servicemember.  A “covered servicemember” is a current member of the Armed Forces, including a member of the National Guard or the Reserves, or a member of the Armed Forces who is on the temporary disability retired list.  This leave is referred to in the new regulations as “military caregiver leave.”

Coordination with Other FMLA Leave Rights

A qualifying exigency is simply another reason for which an eligible employee is entitled to take up to 12 weeks of FMLA leave over a 12-month period designated by the employer.  In other words, an eligible employee is entitled to a total of up to 12 weeks of FMLA leave in a 12-month period for any combination of the following:  the birth of the employee’s child, adoption or foster care placement, the employee’s own serious health condition, care for a family member with a serious health condition, and/or a qualifying exigency. 

Military caregiver leave, on the other hand, involves a different calculation of FMLA leave entitlement.  An employee who takes FMLA leave to care for a covered servicemember is limited to a combined total of 26 weeks of leave for any FMLA-qualifying reason in a “single 12-month period,” which is defined as the period that begins on the first day the employee takes FMLA leave to care for a covered servicemember and ends 12 months after that day.  Thus, an employee who uses 16 weeks of FMLA leave during a “single 12-month period” to care for a covered servicemember is limited to an additional 10 weeks of leave during that period for any other qualifying reason, such as the employee’s serious health condition.  If military caregiver leave also qualifies as leave to care for a family member with a serious health condition, the employer must designate the leave as military caregiver leave.

Employers should be aware that the “single 12-month period” for the purpose of military caregiver leave is not the same as the 12-month period that employers use to track leave entitlement for other FMLA-qualifying purposes.  When an employee takes military caregiver leave, the employer will be required to track the leave entitlement over both the “single 12-month period” and the 12-month period used to track leave entitlement for other FMLA-qualifying purposes. 

Certification Process for Military-Related Leaves

The DOL has prepared new certification forms for each of qualifying exigency leave and military caregiver leave.  The new regulations also detail what further information may be requested in connection with each such leave.

Revisions to the Current FMLA Regulations

The remainder of this Client Alert summarizes key differences between the current FMLA regulations and the new FMLA regulations with respect to the types of leave that have been available since before the enactment of the NDAA.  The changes affect substantive standards governing leaves and the rules concerning notice and requests for information.

Changes to Substantive Standards

Eligibility Clarifications

• Current Regulations:  The FMLA’s eligibility standards require that an employee have been employed by the employer for 12 months and that the employee have been employed for at least 1,250 hours of service in the 12 months immediately preceding the leave.  The current regulations do not specify when a break in service is long enough to restart the 12-month employment period necessary for eligibility.  The current regulations are also not clear concerning whether an employee who is on a leave of absence at the 12-month anniversary of hire becomes eligible for FMLA leave at that point. 
• New Regulations:  A previous period of employment is counted toward an employee’s 12-month eligibility standard as long as the break in service is less than seven years.  In addition, certain military service or agreements may result in counting previous employment periods despite longer “breaks in service.” 

An employee who is on a leave of absence at the time when the 12-month anniversary of hire is reached can become eligible for FMLA leave at that time, even if the leave is unpaid, as long as other benefits or compensation are provided.

Consistent with an earlier nonregulatory interpretation by the DOL, the new regulations also specify that in determining whether an employee was employed for 1,250 hours of service in the preceding 12 months, time that would have been worked for the employer but for National Guard or Reserve obligations is counted.

Revised Definition of Serious Health Condition

The new regulations clarify the standards for some of the alternative types of “serious health conditions” that entitle an employee to FMLA leave because they involve “continuing treatment:”

• Current Regulations:  One form of a serious health condition that involves continuing treatment consists of more than three consecutive days of incapacity plus either (1) treatment two or more times by a health care provider (or a nurse or physician’s assistant under direct supervision of a heath care provider), or (2) at least one treatment by a health care provider plus a regimen of continuing treatment.  The current regulations do not address when those must occur. 
• New Regulations:  The “more than three consecutive days” standard has been revised to “more than three consecutive, full calendar days.”  With respect to the timing of treatments, the first of the treatments must occur within seven days of the first day of incapacity and must involve an in-person visit.  When the standard is satisfied by a second treatment rather than by a regimen of continuing treatment, the second treatment must also be an in-person visit, which must occur within 30 days of the first day of incapacity. 
• Current Regulations:  Another form of a serious health condition that involves continuing treatment is a chronic condition that requires “periodic visits” to a health care provider, continues over an extended period of time and may cause episodic incapacity.  The current regulations do not define “periodic visits.” 
• New Regulations:  “Periodic visits” are two or more visits to a health care provider per year.

Substitution of Paid Leave

• Current Regulations:  Under the FMLA, employees may take accrued paid leave concurrently with any FMLA leave by “substituting” the paid leave for otherwise unpaid FMLA leave.  Employers may also require employees to substitute paid leave for FMLA leave.  The current regulations include different procedural requirements for the use of different types of paid leave. 
• New Regulations:  The right to substitute any form of paid leave for otherwise unpaid FMLA leave depends upon the terms of the paid leave program.  The right to paid leave is governed by the terms of the employer’s paid leave programs, without any overlay of regulatory standards concerning the use of paid leave.  However, if an employee does not qualify for paid leave, that does not affect the employee’s right to take unpaid FMLA leave. 

Increments of Intermittent or Reduced Schedule Leave

• Current Regulations:  An employee may not be required to take more FMLA leave than necessary to address the circumstances that caused the need for leave.  That applies to intermittent and reduced schedule leaves as well as to other forms of leave.
• New Regulations:  The same general rule applies, with one clarification.  In some cases, it is physically impossible for an employee to work only part of a shift.  Examples include laboratory employees who work in a sealed clean room, flight attendants and railroad conductors.  In such circumstances, the employer may treat all of the time away from work as the use of FMLA leave, even if an individual in other work circumstances would have needed to be absent for only part of a shift.

Employee Rights While on Light Duty Assignments

• Current Regulations:  Some courts have ruled that under the current regulations, if an employee voluntarily accepts a light duty assignment while recovering from a serious health condition, the light duty assignment counts as FMLA leave.  Under that interpretation, an employee’s FMLA rights, including the right of reinstatement, could expire during the light duty assignment.  For example, an employee who takes four weeks of FMLA leave and then voluntarily accepts a 10 week light duty assignment during his or her recovery would have no additional available FMLA time and no right of reinstatement upon conclusion of the light duty assignment. 
• New Regulations:  If an employee voluntarily accepts a light duty assignment while recovering from a serious health condition, the light duty assignment does not count as FMLA leave.  Also, an employee’s FMLA rights, such as the right of reinstatement, are held in abeyance during the light duty assignment for the remainder of the 12-month leave year, as long as the employee has not exhausted his or her FMLA entitlement.  For example, an employee who takes four weeks of FMLA leave and then voluntarily accepts a 10 week light duty assignment during the employee’s recovery would still be eligible for up to eight weeks of FMLA leave and would retain the right of reinstatement to the his or her former position or an equivalent position during the light duty assignment and during any subsequent FMLA leave.  However, an employee who accepts a light duty assignment after exhausting his or her limit of 12 weeks of FMLA leave would not have a right of reinstatement to his or her earlier position or an equivalent position during or after the light duty assignment.

Effect of FMLA Leave on Perfect Attendance and Safety Awards

• Current Regulations:  An employee may not be disqualified from eligibility for awards or bonuses that are based on the absence of an occurrence, such as perfect attendance or safety awards, on the basis of FMLA leave. 
• New Regulations:  An employer may disqualify an employee from awards or bonuses that are premised on the achievement of a specified goal, such as awards or bonuses for perfect attendance or safety, on the basis of FMLA leave as long as the employer also disqualifies employees on the basis of non-FMLA leave.  An employer may not disqualify an employee who takes FMLA leave from awards or bonuses that are not premised on the achievement of a goal, such as a holiday bonus awarded to all employees.

Permissibility of Waiver of FMLA Claims Based on Past Employer Conduct

• Current Regulations:  Some courts have interpreted the current regulations as prohibiting employees from entering into any agreements under which they release FMLA claims against their employers, even if the release is limited to claims based on prior employer conduct.
• New Regulations:  Employers may obtain enforceable release agreements under which employees waive FMLA claims concerning prior employer conduct.  Employees may not, however, waive their right to future FMLA leave or otherwise release FMLA claims based on future conduct.

Notice and Information Rights and Requirements

Revised Employer General Information Notice Requirements

• Current Regulations:  The current regulations require employers to post general notices of FMLA rights.  The current regulations do not authorize employers to meet that requirement through electronic posting.  Also, employers who do not have handbooks or benefit manuals are required to give employees a general notice of FMLA rights and obligations no less often than the first time in every six-month period that the employee gives notice of the need for FMLA leave.
• New Regulations:  Employers can meet their requirement to post a general FMLA notice through electronic posting.  However, for such a posting to be sufficient, it must be accessible to all employees and applicants.  Also, employers that do not have handbooks or benefit manuals are only required to give employees the general notice upon hire.

The DOL has updated the text of its sample general notice of rights, which sets forth information that satisfies the general notice requirements.  The new notice form includes sections on new military-related leaves for qualifying exigencies and leave to care for a covered servicemember.

Employers that have handbooks and/or benefit manuals continue to be required to include FMLA information in such materials.  The FMLA information must be at least as detailed and complete as the DOL’s form of general notice.  Since that notice includes descriptions of qualifying exigency leave and military caregiver leave, employers should, at a minimum, update their FMLA policies to include discussion of those new leave rights.  Employers should also update their postings at least to address those new leave rights.

Revised Employer Eligibility Notice Requirements

• Current Regulations:  An employer must provide notice to an employee who requests FMLA leave concerning whether the employee is eligible for such leave.  The employer must provide the notice within two business days of the date the employer determines the employee’s eligibility or, if the employee requests leave within two days of the need for leave, the employer must confirm eligibility within two business days of the employer’s receipt of the request.  An employer is not required to provide an ineligible employee with the reasons for the employee’s ineligibility. 
• New Regulations:  As under the current regulations, an employer must provide notice to an employee who requests FMLA leave concerning whether the employee is eligible for such leave.  The notice may be provided orally or in writing.  The notice must be provided within five business days of receiving the employee’s request for FMLA leave.  If there are separate absences for the same qualifying reason during the same 12-month period, the absences are considered to be part of the same leave period, and therefore no new notice by the employer is required.  If an employer determines that an employee is ineligible, the employer must provide the employee with at least one reason for the employee’s ineligibility.

The DOL has prepared a new prototype form of notice, entitled “Notice of Eligibility and Rights & Responsibilities.”  In completing the new notice, an employer will specifically address whether an employee who has requested leave is eligible.

Revised Employer Individual Rights and Responsibilities Notice

• Current Regulations:  An employer must give an employee a specific notice of the employee’s FMLA rights and responsibilities no less often than the first time in every six-month period that the employee gives notice of the need for FMLA leave.
• New Regulations:  An employer must give an employee the specific notice of the employee’s FMLA rights and responsibilities at the same time as the employer provides an eligibility notice to the employee.  That notice may be provided electronically.  The new “Notice of Eligibility and Rights & Responsibilities” referred to above may be used for this purpose.  That includes, among other terms, a requirement to include “applicable conditions” related to substitution of paid leave and a statement that if paid leave requirements are not satisfied, the employee will remain entitled to take unpaid FMLA leave. 

Revised Employer Designation Notice Requirements

• Current Regulations:  When an employee requests FMLA leave, the employer must notify the employee if the employee’s leave will be designated as FMLA leave within two business days after the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason.  The employer is not required to notify the employee if the leave is not designated as FMLA leave.
• New Regulations:  The employer must notify the employee whether the employee’s leave will be designated as FMLA leave within five business days after the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, even if the leave is not designated as FMLA leave.  The DOL has prepared a new prototype form of “Designation Notice.”  In accordance with new informational requirements in the new regulations, the Designation Notice includes information that the employer is required to provide.  That includes, among other terms, identification of a requirement to provide a fitness-for-duty certificate in connection with a return to work.

Modification of Consequences of Failure to Comply with Notice Requirements

• Current Regulations:  The current regulations state that an employee’s leave does not count against the employee’s FMLA entitlement until the employer designates the leave as FMLA leave.  In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the Supreme Court invalidated that requirement as a penalty that improperly punished an employer’s failure to provide timely notice of designation of the leave by denying it credit for any leave that it granted before notice, regardless of whether the employee suffered any harm.  The current regulations also state that a failure to comply with the eligibility notice provision shall result in deeming an otherwise ineligible employee to be eligible for leave.  That provision has also been rejected by courts.
• New Regulations:  An employer will no longer be automatically denied credit for leave that it grants before it designates the leave as FMLA leave.  The regulations also no longer provide for deeming an otherwise ineligible employee to be eligible if notice concerning eligibility is not provided.  Instead, the new regulations state that an employer could be liable for failure to comply with notice obligations if the failure results in harm to the employee.

Revised Employee Notice Requirements

• Current Regulations:  Employers may not deny or delay FMLA leave because an employee fails to follow the employer’s usual notice and procedural requirements for calling in absences and requesting leave as long as the employee gives timely verbal or other notice.
• New Regulations:  An employer may deny or delay FMLA leave because an employee fails to follow the employer’s usual and customary notice and procedural requirements for calling in absences and requesting leave.  An employer’s usual and customary notice and procedural requirements may include providing notice in writing and/or contacting a specific individual.  However, unusual circumstances may justify failure to comply.

As under the current regulations, an employee need not reference the FMLA when seeking leave for the first time for a qualifying reason.  However, if an employee seeks new leave for a reason for which the employee previously took FMLA leave, the employee must specifically reference the qualifying reason or the need for FMLA leave.

New Medical Certification Form

• Current Regulations:  The current regulations include a medical certification form for employees to have a health care provider certify the medical condition of the employee or the employee’s family member.  While the employer may use its own certification form, the employer may not require information beyond what is requested in the DOL’s form.  The DOL’s form does not ask the health care provider to provide a diagnosis nor does it ask the health care provider to answer whether intermittent leave is medically necessary. 
• New Regulations:  The new regulations include a medical certification form for certification of an employee’s medical condition and a separate prototype form for certification of a family member’s medical condition.  Similar to the current regulations, while an employer may use its own certification forms, the employer is limited to requesting information that the regulations permit the employer to request.  Nearly all of the permitted requests are reflected in the new certification forms.  The new forms include several changes from the previous forms, such as specifying that the health care provider may provide a diagnosis if relevant, asking the health care provider to explain the care that is needed and why it is medically necessary and, for chronic conditions, requesting more specific information concerning anticipated frequency and duration of episodic flare-ups.

Revised Procedures for Informing Employee That Medical Certification Form Is Incomplete

• Current Regulations:  An employer is required to inform an employee when the employer finds the employee’s medical certification form incomplete.  There is no requirement for the employer to inform the employee in writing.  The employer also must provide the employee with a “reasonable opportunity” to cure any such deficiency. 
• New Regulations:  When an employer finds an employee’s medical certification form incomplete or insufficient, the employer must inform the employee in writing what information is needed.  The employer must provide the employee with seven calendar days to cure any such deficiency before the employer may deny FMLA leave.  The employer may also be required to give additional time for the employee to provide information in certain circumstances.

Revised Procedures for Clarification and Authentication of Medical Certification Forms

• Current Regulations:  An employer may contact an employee’s health care provider to clarify or authenticate the employee’s medical certification form, provided that the employer obtains the employee’s consent.  The person who contacts the employee’s health care provider on behalf of the employer must be a health care provider. 
• New Regulations:  An employer does not need an employee’s consent to contact the employee’s health care provider for clarification or authentication of the employee’s medical certification form.  However, if the employer finds the certification incomplete or insufficient, the employer may not contact the employee’s health care provider until the completion of the seven-day period that the employer must give the employee to cure any deficiencies.  The person who contacts the employee’s health care provider may be a (1) human resources specialist; (2) a leave administrator; (3) a management official; or (4) a health care provider.  However, under no circumstances may the employee’s direct supervisor contact the employee’s health care provider, even if the direct supervisor is in one of those categories listed above.  If the employee does not give the employer authorization that may be required for the employee’s health care provider to respond, the employer may deny the leave if the certification is unclear.

Revised Procedures for Recertifying an Ongoing Condition

• Current Regulations:  An employer may not request recertification of a medical condition for which an employee requests intermittent leave until the minimum period of the duration of the condition as specified on the employee’s certification form has passed.  Under one reading of that regulation, an employer would never be able to recertify a condition for which an employee requests intermittent leave for an indefinite period.  However, the current regulations also can be read to permit an employer to require recertification of a chronic or long-term condition every 30 days in connection with an absence.  These two provisions create confusion as to whether an employer may require an employee to recertify a condition in connection with an absence when the employee requests intermittent leave for an indefinite period. 
• New Regulations:  Employers may recertify a medical condition every six months in connection with an absence, even if the employee requests intermittent leave for an indefinite period.  The regulations also expressly authorize the employer to provide the health care provider with a record of employee’s absence pattern and ask the health care provider if serious health condition and need for leave is consistent with that pattern.

Expanded Permissible Scope of Fitness for Duty Inquiries

• Current Regulations:  An employer may require an employee to submit a fitness-for-duty certification as a condition of returning from FMLA leave, but the employer may not require anything more than a simple statement of the employee’s ability to return to work. 
• New Regulations:  An employer may require an employee returning from FMLA leave to have his or her health care provider certify that the employee is fit to perform the essential functions of his or her job as long as the employer (1) provides the employee with a list of those essential functions when the employer provides the employee with a Designation Notice; and (2) also informs the employee at the time of designation that the employee will be required to have his or her health care provider certify his or her ability to perform the essential functions.

Conclusion

The new FMLA regulations will change the rights and responsibilities of both employers and employees under the FMLA.  Among the changes are several modifications to the rules governing the process of administering FMLA leaves and leave requests.  Employers should revise their FMLA policies and begin utilizing new FMLA postings, notice forms and certification forms based on the new regulations.  Employers also should ensure that their practices satisfy the standards of the new regulations and consider changes in their practices to take advantage of some of the options provided to employers under the new regulations.

To assist employers with compliance, Goodwin Procter will be hosting a client seminar on the new FMLA regulations and the recently effective Americans with Disabilities Act Amendment Act of 2008.  Invitations to the seminar, including schedule and location information, will be sent separately.