Final Family Medical Leave Act Regulations

Effective January 16, 2009

Management-Side Labor & Employment Law

A CONCISE SUMMARY OF SIGNIFICANT CHANGES:

29 CFR §825.106 - Joint Employer Coverage

Professional Employee Organization (PEO’s) are specifically referenced, and provides standards relating to whether the PEO should be considered a “Primary Employer” vs. a “Secondary Employer.”

29 CFR §825.108 - Public Agency Coverage

Sets forth more specific standards in determining who or what is a “public agency” covered under the FMLA.

29 CFR §825.109 - Federal Agency Coverage

Sets more specific standards in determining who or what is a “federal agency” covered under the FMLA regardless of employee thresholds.

29 CFR §825.110 - Eligible Employees

Although 12 months of employment need not be consecutive, the 12 months must occur within the past 7 years (if employer wants to waive this, it may but must do so consistently). However, breaks in employment 7 years or more must be counted if: a) due to military service obligations; or b) written agreement (i.e. CBA’s) showing employer’s intention of re-hiring employee after the break.

29 CFR §825.111 - Determining Whether 50 Employees Are Employed Within 75 Miles

An employee’s “worksite” is the site to which the employee reports to work (if no fixed worksite exists then the worksite is where they are assigned). For employees jointly employed by 2 or more employers, the employee’s worksite is the primary employer’s office from which employee is assigned or reports, unless the employee has physically worked for at least 1 year at secondary employer’s facility --- in which case, that’s the employee’s worksite.

29 CFR §825.115 - Continuing Treatment

Helps to better define “serious health conditions” that involve incapacity in excess of 3 days. Sets forth the requirement that incapacity in excess of 3 days includes a) treatment 2 or more times within 30 days of the fist day of incapacity (except unless extenuating circumstances exist beyond employee’s control preventing the treatment to take place as planned) or b) treatment on at least 1 occasion resulting in regimen of continuing treatment under the supervision of a health care provider. The first treatment must occur within 7 days of the first day of incapacity. Treatment must be in-person.

The new rule helps to also better define “serious health conditions” that involve chronic conditions. To be chronic, the condition should a) require periodic visits for treatment at least 2 times per year, b) continues over an extended period of time, and c) may cause episodic periods of incapacity.

29 CFR §825.120 - Leave For Pregnancy Or Birth; and
29 CFR §825.121 - Leave for Adoption Or Foster Care

Husbands (aka the lawful spouse of the mother) may take FMLA leave (the boyfriend or fiancé cannot). The same limits apply to spouses employed by the same employer regardless of different worksites. However, each spouse could take additional FMLA leave not already exhausted for serious health conditions. Example, spouses X & Y both work for Company Z. Both spouses take 6 weeks of FMLA leave each for a total of 12 weeks for the birth of their newborn. If that newborn has a serious health condition, both spouses could each take an additional 6 weeks of FMLA leave to care for that child.

29 CFR §825.122 - Definitions [Related To Family Relationships Under New Military Leave Rights]

Because of the new military leave provisions, several new definitions have been added to determine “next of kin” – “parent” – “son” – “daughter” for military leave purposes.

29 CFR §825.123 - Unable To Perform The Functions Of The Position

Employers can provide health care provider with list of essential job functions for review and require that the medical certification specify what functions of the employee’s position the employee is unable to perform.

29 CFR §825.124 - Needed To Care For A Family Member Or Covered Servicemember

No matter how many family members or other caregivers are available, employee is entitled to use FMLA leave to care for a spouse or family member (psychological support is recognized).

29 CFR §825.125 - Definition Of Health Care Provider

Expands scope of definition. Includes, by reference, physician assistants.

29 CFR §825.126 - Leave Because Of Qualifying Exigency

This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves (not members of the regular Armed Forces) to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The Department’s final rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave: (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 not encompassed in the other categories, but agreed to by the employer and employee.

29 CFR §825.127 - Leave To Care For A Covered Servicemember With A Serious Injury Or Illness; and
29 CFR §825.200 - Amount Of Leave

Eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty (in the regular Armed Forces, Reserves or National Guard). Based on a recommendation of the President’s Commission on Wounded Warriors (the Dole-Shalala Commission), this 26 workweek entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.

The “single 12-month period” is measured forward from the date of the leave commencing (regardless if employer uses a different 12-month period for other types of FMLA leave).

29 CFR §825.200 - Amount Of Leave

Holidays may be counted as FMLA leave so long as the employee is on FMLA leave the entire week the holiday falls. If the employee works a partial week (using the remaining time under FMLA), the holiday can only be counted towards FMLA leave if the employee was scheduled and expected to work on that holiday.

29 CFR §825.203 - Scheduling Of Intermittent Or Reduced Schedule Leave

Emphasizes the requirement that employee taking intermittent leave for planned medical treatment (as necessary), then the employee must make reasonable efforts to schedule the treatment so as to not unduly disrupt the employer’s operations.

29 CFR §825.204 - Transfer Of An Employee To An Alternative Position During Intermittent Leave Or Reduced Schedule Leave

Employers may temporarily transfer employees on foreseeable intermittent or reduced schedule leave to an alternative job which the employee is qualified and better accommodates recurring periods of leave.

29 CFR §825.205 - Leave Increments

Increments of intermittent/reduced schedule leave can be no greater than the shortest period of time that the employer uses to account for use of other forms of leave (provided that the increment does not exceed 1 hour, and provided that the FMLA leave balance is not charged for more than the amount of actual leave taken).

In addition, the new rule recognizes situations where it is physically impossible for the employee using intermittent leave to begin or end work mid-way through a shift. Example, if a flight attendant cannot begin work until the flight is in route, then the entire period the employee is absent is counted towards the FMLA leave balance.

Also, in intermittent leave or reduced schedule situations, if the employee is normally required to work overtime but cannot due to an FMLA leave, then the overtime hours not worked may be counted towards FMLA. Voluntary overtime is off limits (it cannot be counted towards the FMLA balance).

29 CFR §825.207 - Substitution Of Paid Leave

FMLA remains unpaid! However, the new rule clarifies a few key points:

Employees who elect to use a paid leave benefits (i.e. vacation), must comply with the employer’s rules, policies and procedures with regard to such benefits. If these rules, policies and procedures are not followed, the employee may forego the use of paid time but not FMLA leave.
Employers may require that employees use accrued paid leave while on FMLA --- but, cannot require this while the employee is also receiving disability benefits or work comp benefits while also on FMLA leave (underscoring recent case law on this issue).
The employer and employee may mutually agree to supplement any disability or work comp benefit that’s less than 100% of the employee’s normal pay with any other form of paid leave benefit provided by the employer (so long as permitted by State law).
For public employees entitled and permitted by law to receive compensatory time off (1 ½ hours for each overtime hour worked) in lieu of overtime pay, any time taken for an FMLA reason may be counted towards FMLA leave under certain circumstances.

29 CFR §825.215 - Equivalent Position

There’s one substantive change making Headlines… If a bonus or other payment is based on the achievement of a specified goal (i.e. hours worked, products sold or perfect attendance), and the employee does not meet the goal due to FMLA leave, then the payment may be denied unless otherwise paid to employees on leave for reasons unrelated to FMLA.

29 CFR §825.220 - Protection For Employees Who Request Leave Or Otherwise Assert FMLA Rights

Employees may waive their FMLA rights based on past conduct without US DOL or court approval through a voluntary settlement agreement or release --- but the waiver cannot be prospectively. Also, if an employee voluntarily accepts “light duty” work in lieu of FMLA leave, that employee has the right to be restored to an equivalent position during the assignment and until the end of the 12-month FMLA leave period.

29 CFR §825.300 - Employer Notice Requirements

Posting the required US DOL workplace poster, and the distribution of a written policy to all employees has not changed. However, the US DOL recognizes electronic means of communication and distribution. Employers must provide to employees an eligibility notice for those who apply for or request FMLA leave. If the employee is not eligible, employers must communicate the reason why to the employee. There’s also a rights and responsibilities notice and a designation notice. Each time an eligibility notice is executed, the rights and responsibilities notice must accompany it. The US DOL makes things easier for employers by combing these notices on the same form (New WH-381 Form). Once a determination is made, the employer must provide a designation notice to the employees (i.e. approved or not approved or need additional information or need a 2nd/3rd medical opinion) (see New WH-382 Form).

The new rule extends the time period that the employer has to provide these notices to the employee from 2 business days to 5 business days.

Employers may continue to use their own forms so long as the written correspondence to the employee covers the necessary information provided in the US DOL’s forms. HINT: Major emphasis now on using the new US DOL forms.

29 CFR §825.301 - Designation Of FMLA Leave

Because of the employer’s obligation to designate leave as FMLA leave or not within 5 business days from the time employee provides notice of the need for FMLA leave, there’s an emphasis on the employee’s duty to explain the reasons for any leave sufficient for the employer to make a decision.

29 CFR §825.302 - Employee Notice Requirements For Foreseeable FMLA Leave

When foreseeable, employee must provide employer with at least 30 days advance notice of FMLA leave unless it is not practicable to do so (then, notice must be given as soon as possible and practical). For leave due to a “qualifying exigency” under the new military leave provisions, notice must be “as soon as practicable” regardless if the leave was foreseeable. If an employee fails to provide timely notice as required, employers may deem any time off as non-FMLA leave and subject the employee to time and attendance policies.

If notice is not provided as required, employer may inquire into the reasons why, and employee must explain.

29 CFR §825.303 - Employee Notice Requirements For Unforeseeable FMLA Leave; and
29 CFR §825.304 - Employee Failure To Provide Notice

The standard for unforeseeable leave is “as soon as practicable.” However, requests for FMLA need only take the form whereby an employer may reasonably determine whether the FMLA may apply. Employers may require employees to comply with its usual and customary notice and procedural requirements (absent unusual circumstances). An employee’s failure to conform to such notice and procedures may result in the employer deeming the absent as non-FMLA and subjecting the employee to time and attendance policies. Example policy: Absent unusual circumstances, when an employee needs a leave of absence under circumstances not foreseeable, employee must call 555 555-1212 and either speak with or leave a detailed message for Charlie Tuna no later than 1 hour after employee’s work shift begins.

When an employee fails to provide notice as required, employers may delay FMLA leave and count any time off as non-FMLA leave proportionate to the time whereby notice was not provided. This non-FMLA leave may be reviewed in light of existing time and attendance policies.

NOTE: Under the new rule, “calling in sick” without anything more is not sufficient notice to trigger an employer’s obligations under the FMLA.

29 CFR §825.305 - Certification, General Rule

Employers now have 5 business days to request a certification for the need for FMLA leave upon proper notification. Employers may require the certification be completed within 15 calendar days, unless it is not practicable to do so despite good faith efforts on the part of the employee. Employers must provide employee’s with 7 calendar days to cure any defects in the certification, unless not practicable to do so despite good faith efforts. Untimely or defiClient certifications not timely cured may result in a denial of FMLA leave --- the employer must first advise the employee of such consequences at the time of the request for certification. Employers may require a new certification for any FMLA leave lasting beyond one leave year (and each subsequent year).

29 CFR §825.306 - Content Of Medical Certification For Leave Taken Because Of [A Serious Health Condition]; and
29 CFR §825.307 - Authentication And Clarification Of Medical Certification For Leave Taken Because Of [A Serious Health Condition]; and
29 CFR §825.308 - Recertifications For Leave Taken Because Of [A Serious Health Condition]

The US DOL again attempts to make things a bit easier for employers by developing two new forms dealing with serious health conditions and the certification of the same. The first form (WH-380-E) is for the employee’s own serious health condition. The second form (WH-380-F) is for the employee’s family member’s serious health condition.

The new rule expressly authorizes the employer (management official, leave administrator, human resource professional or a health care provider) to communicate directly with the health care provider making the certification for authentication and clarification purposes only so long as the employee’s direct supervisor is not involved in that contact. If the employer wants additional information, the employer should first attempt to allow the employee to cure any defect with 7 calendar days (as described in 29 CFR §825.305).

If the health care provider does not cooperate or does not provide subsequent authentication or clarification without the employee signing a HIPAA consent form, then it’s up to the employee to resolve. At the end of the day, it’s the employee’s burden to make certain proper and timely certification is obtained.

For leaves greater than 30 days, recertification may be required once the original leave is completed but in all cases every 6 months for leaves related to the absence. For leaves less than 30 days, recertifications can also be required at any time where an extension for leave is requested, circumstances have changed from the last certification or if the employer receives information casting doubt about the leave or validity of the prior certification.

These sections do not apply to the military leave provisions.

29 CFR §825.309 - Certification For Leave Taken Because Of A Qualifying Exigency

An employer may first require certification that the covered military member is a member of the National Guard or Reserves on active duty or called to active duty (i.e. copy of military orders will suffice). This may be requested only once.

An employer may utilize the US DOL’s new prototype form for this exigency certification. The form is WH-384. The information an employer may require to obtain proper certification from the employee is incorporated into this new WH-384 form.

29 CFR §825.310 - Certification For Leave Taken To Care For A Covered Servicemember (Military Caregiver Leave)

There are obviously new detailed provisions allowing employers the right to require certification from the employee concerning necessary military caregiver leave. Again, the US DOL has developed an optional form for this certification. The form is WH-385. Section I of the new form relates to the military status and care to be provided. Section II is devoted to the medical certification to be provided from the US Department of Defense, the US Department of Veterans Affairs, and other specifically recognized providers. However, the Department of Defense may issue an “invitational travel order” or an “invitational travel authorization” whereby circumstances are critical and such documents serve as automatic certification for the duration of time specified in the order or authorization documents.

29 CFR §825.312 - Fitness-For-Duty Certification

Employers may require certification to address whether the employee can return to work. However, the employer must treat all similarly situated employees similarly under similar circumstances.

The employer may now require that the employee be assessed by a health care provider with regard to the employee’s ability to perform essential job functions (so long as this was addressed and a list of essential job functions was set forth in the original designation notice).

Fitness-for-duty certifications continue to be prohibited when sought after each intermittent absence, but an employer can require the certification every 30 days provided the employee used leave during that time period and reasonable safety concerns relate to the employee’s job.

Employees must cooperate in these processes. Employees have 15 calendar days to submit the certification --- but cannot be terminated while waiting for the certification. No 2nd or 3rd opinions are allowed.

DISCLAIMER: THE INFORMATION CONTAINED IN THIS OUTLINE HAS BEEN SUBSTANTIALLY ABRIDGED FROM ORIGINAL SOURCE DOCUMENTS AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. PLEASE CONSULT YOUR FAVORITE WESSELS SHERMAN ATTORNEY FOR DIRECT CONSULTATION.