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The New FMLA Regulations: Are You in Compliance?

April 2, 2009

On January 16, 2009, new regulations governing the Family Medical Leave Act (FMLA) went into effect. Issued by the U.S. Department of Labor (DOL), the regulations substantially revise the old regulations that had been in effect since the FMLA was enacted in 1993. The new regulations also for the first time clarify two new categories of military family leave for employees that were added to the FMLA in January 2008: (1) "qualifying exigency" leave related to a covered family member's call to active duty in the Armed Forces, and (2) leave to care for a covered servicemember who becomes injured or ill while on active duty in the Armed Forces. These changes require nearly all employers covered by the FMLA to revise their FMLA policies and alter the manner in which they administer FMLA leave for their employees.

Two New Categories of FMLA Leave

The most significant change in the new FMLA regulations is the addition of regulations addressing the two new types of military family leave. First, eligible employees may now take up to 12 weeks of unpaid, FMLA-protected leave for a "qualifying exigency" related to a close family member's call to active duty in the Armed Forces. The new regulations define a "qualifying exigency" as (1) short-notice deployment; (2) military events and related activities; (3) childcare and school-related activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation (R&R); (7) post-deployment activities; and (8) additional activities where the employer and the employee agree on the leave.

The regulations allow an employer to require any employee requesting "qualifying exigency" leave to provide a copy of the active duty orders or similar documentation to support the request. The employer may also confirm the need for leave with the U.S. Department of Defense or any third party with whom the employee may have scheduled a meeting that constitutes a "qualifying exigency."

The 12 weeks of leave permitted for "qualifying exigency" leave is calculated in the same manner as, and concurrently with, the traditional types of FMLA leave.

Second, eligible employees may now also take up to 26 weeks of unpaid, FMLA-protected leave to care for a close family member or next of kin who is a servicemember in the Armed Forces and who is injured or becomes ill in the line of duty while on active duty. The new regulations specify that this type of leave is available only if the servicemember is medically unfit to perform the duties of his or her military office, grade, rank or rating, and the employee is needed to care for the servicemember.

The 26 weeks available to an employee to care for an injured or ill servicemember is a "one time only" benefit and must be taken within a single 12-month period, measured from the first date the employee takes the leave. However, the 26 weeks is based on a "per injury/per covered servicemember" basis. Thus, if an employee has an additional family member who is injured or becomes ill in the line of duty, or the same family member is injured or becomes ill a second time while on active duty, then the employee would be entitled to another 26 weeks.

New FMLA Postings and Forms

In conjunction with the new regulations, the DOL has issued a variety of new postings and forms that govern the way employers administer FMLA leave. First, the DOL has issued a new FMLA poster entitled "Employee Rights and Responsibilities Under the Family and Medical Leave Act." Employers are advised to post this new poster immediately and distribute it to each employee.

The DOL has also developed a form entitled "Notice of Eligibility and Rights & Responsibilities." This form is intended to be given by an employer to an employee within 5 business days after the employee has requested FMLA leave. mong other things, the form indicates whether or not the employee is eligible for leave, identifies the information and/or certification form the employee will need to provide to qualify for the leave, and explains the employee's rights and responsibilities related to the leave.

With respect to certification of the need for leave, there are now four different certification forms instead of one: (1) Certification of Health Care Provider for Employee's Serious Health Condition; (2) Certification of Health Care Provider for Family Member's Serious Health Condition; (3) Certification of Qualifying Exigency for Military Family Leave; and (4) Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave. The specific form that should be provided to an employee for completion will depend on the type of leave the employee is requesting.

Once a completed certification form or other supporting documentation regarding the need for leave has been provided to the employer, the employer now has 5 business days to advise the employee whether the leave will be approved. The DOL has developed a new form entitled "Designation Notice" to serve this purpose. The Designation Notice also provides a mechanism for the employer to advise the employee how the leave will be handled and whether or not a "fitness-for-duty" certificate will be required for the employee to return to work.

Changes in Certification and Recertification of Need for Leave

 

The new regulations explicitly state that it is the employee's obligation to return "complete and sufficient" certification paperwork to the employer within 15 days after it is requested. If a certification form is not complete or is insufficient, the employer must advise the employee of the deficiency in writing, and provide the employee with 7 days to cure it. Failure to do so may result in denial of the leave.

One interesting change in the new regulations is that an employer may now contact an employee's health care provider directly to authenticate or clarify a certification form, provided the employer complies with HIPAA. Contact with the health care provider may be made by any Human Resources professional or management official, provided the individual making the contact is not the employee's direct supervisor.

The regulations continue to allow second and third opinions on an initial certification where the leave is related to an employee's or a family member's serious health condition. However, second and third opinions are not permitted for the two new types of military family leave.

For conditions that last longer than one year, employers can now request a new medical certification each year. In addition, employers continue to have the right to request recertification. Generally, recertifications may be requested no more often than every 30 days or no more often that the duration of the condition specified in the certification, whichever is longer, and then only in connection with an absence. However, the new regulations now permit recertifications at least every 6 months in connection with an absence, regardless of the duration of the condition.

Recertification is not permitted for the two new types of military family leave. In addition, the new regulations confirm that second and third opinions on recertifications are not allowed.

Changes in Employee Obligations to Provide Notice of Need for Leave

 

The new regulations confirm that were the need for FMLA leave is foreseeable, an employee must provide at least 30 days notice to the employer. Verbal notice is sufficient. The new regulations clarify, however, that an employer can require an employee to comply with the employer's usual and customary notice requirements. Where the employee does not comply with such requirements, and there are no unusual circumstances justifying the failure to comply, then the FMLA leave may be denied.

Even where the need for leave is unforeseeable, the new regulations allow an employer to require an employee to comply with usual and customary notice requirements. Failure to do so could result in delay or even denial of FMLA leave.

Other Significant Changes

The new regulations contain other significant changes that clarify and modify the FMLA landscape, including changes that address waiver of FMLA claims in severance agreements and releases, clarify the definition of "serious health condition" and the scheduling of intermittent leaves, address whether "perfect attendance" awards can be denied to employees who take FMLA leave, address the treatment of light duty work, and clarify the method for counting overtime and holiday hours for employees on FMLA leave.

For training on the new FMLA regulations, or if you have any questions regarding the FMLA in general, please contact any of our Varnum Labor and Employment Relations lawyers.

If you are interested in learning more about the information presented in this article, please do not hesitate to contact Elizabeth Wells Skaggs or another attorney in Varnum's Labor and Employment Relations group.

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