Final Revised FMLA Regulations Issued: Highlights of the Good, the Bad and the Ugly

Just in time for the holiday gift giving season, on November 17, 2008, the U.S. Department of Labor (DOL) published its final revised regulations, overhauling the implementation of the Family and Medical Leave Act of 1993 (FMLA). Certain provisions in the new regulations are clear nods to court and employer concerns regarding inconsistencies, vagueness and other practical problems with the old regulations. The DOL also designed the new regulations to:

Expand avenues for communication between employees, employers and healthcare providers;
Provide clarity to workers and employers about their mutual responsibilities and rights under the FMLA; and
Address the two new FMLA leave entitlements created by the military family leave provisions in the National Defense Authorization Act (NDAA).

Weighing in at a hefty 762 pages in length, the new regulations plus preamble will require careful study by employers who will need to make a number of updates to their current policies and practices in 2009. Highlights of some of the key changes are set forth below.

Effective Date

The new regulations take effect on January 16, 2009, which is sixty (60) days from the date they were published. This will require employers to move quickly in order to revise policies, train managers and otherwise implement the new requirements. On the bright side, in light of the current financial climate, the new regulations could easily have been titled the “2008 Full Employment for Human Resources Administrators and Antacid Manufacturers Economic Stimulus Act.”

Coverage

Eligible Employees. As before, an eligible employee is an employee of a covered employer who: (1) has been employed by the employer for at least twelve months, (2) has been employed for at least 1,250 hours of service during the twelve-month period immediately preceding the start of leave, and (3) is employed at a work site that has fifty or more employees within a seventy-five mile radius. Under the new regulations, if an employee has a break in service that lasts seven years or less, the employee’s service prior to the break must be counted when determining if the employee has been employed for at least twelve months. Moreover, employment periods preceding a break in service of more than seven years must also be counted when the break is caused by the fulfillment of National Guard or Reserve military service obligations or “a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to re-hire the employee after the break.”
Serious Health Condition. Although the six individual definitions of a “serious health condition” remain with no significant revisions, additional guidance is provided as to three. With respect to conditions involving more than three consecutive, full calendar days of incapacity plus two or more treatment visits to a healthcare provider, the new regulations provide that the two visits must occur in-person within 30 days of the first day of incapacity (unless extenuating circumstances exist), and the first in-person visit must take place within 7 days of incapacity. With respect to serious health conditions involving three consecutive, full calendar days of incapacity plus a regimen of continuing treatment, the new regulations likewise require that the first visit to the healthcare provider take place in-person within 7 days of the first day of incapacity. In addition, serious health conditions involving “chronic conditions” must require at least two visits for treatment by a healthcare provider per year.

Leave Entitlement

Minimum Leave Increment. Unfortunately, the new regulations do not provide any significant relief to employers struggling to address practical intermittent or reduced schedule FMLA leave problems. However, the new regulations make a slight change to the language involving the counting of intermittent or reduced schedule leave, such that an employer must account for leave “using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave,” provided it is not greater than one hour. By deleting the modifier “shortest period of time that the employer’s payroll system uses,” this allows employers to calculate intermittent and reduced schedule leave on the same basis as that calculated for other employee absences (i.e., regardless of lesser potential increments that a payroll system might be able to count).
Minimal Leave Increment Exception. Where it is “physically impossible” for an employee on intermittent or reduced schedule leave to start or end work mid-way through a shift, the entire shift may be designated and counted as FMLA leave. This exception, however, appears to be narrow, with the DOL citing examples “such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed clean room.”
Compliance With Employer Policy. Under the new regulations, an employer may require an employee to comply with the employer’s “usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances” (e.g., leave requests directed to a particular individual).
Concurrent Use of Paid Leave. Prior to amendment, the current FMLA regulations applied different rules to the concurrent use of paid vacation and personal leave versus sick leave. However, according to the DOL, under the new regulations, “all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic paid time off).”
Light Duty Work. One of the more significant changes in the new regulations involves the treatment of employees placed on light duty work. As before, if a healthcare provider treating an employee for a workers’ compensation injury certifies that the employee is able to return to light duty work but is unable to return to the same or an equivalent position that the employee left, the employee may decline the employer’s light duty offer and continue on FMLA leave until his or her leave entitlement is exhausted. However, consistent with the DOL’s prior Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995), under the new regulations, if an employee accepts such light duty work, the time spent performing such duties does not count against an employee’s FMLA leave entitlement. Further, according to the DOL, an employee’s right to job restoration to his or her original position is “effectively held in abeyance” during the period of time that the employee works in the light duty role. However, the right to job restoration in such circumstances “ceases at the end of the applicable twelve-month FMLA leave year” used by the employer to calculate leave. In short, according to the DOL, “if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave” but may have FMLA job restoration protection (in some cases well beyond the normal twelve-week period from the employee’s original FMLA leave date).
Overtime. In response to employer concerns, if an employee would normally be required to work overtime but is unable to do so because of FMLA-qualifying reasons, “the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement” (i.e., counted as intermittent or reduced schedule leave, as applicable). However, an employee’s inability to perform voluntary overtime hours may not be counted against an employee’s FMLA leave entitlement.

Employer Notice Obligations

According to the DOL, the new regulations consolidate all FMLA employer notice requirements “into a one-stop section of the regulations.” These notice requirements are divided into four categories.

General Notice. As before, covered employers are required to post a notice explaining the FMLA’s provisions and providing information concerning procedures for filing complaints. However, the new regulations state that electronic posting is sufficient, provided employees and applicants can access such materials. In addition, the new regulations clarify that general notice must be supplied to employees in employee handbooks or other written guidance if such materials exist or “by distributing a copy of the general notice to each new employee upon hiring.”
Eligibility Notice. Under the new regulations, when an employee requests FMLA leave or the employer acquires knowledge that an employee’s absence may be for an FMLA-qualifying reason, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five (5) business days, absent extenuating circumstances.” If the employee is ineligible, “the notice must state at least one reason why.” Once such eligibility is confirmed, “all FMLA absences for the same qualifying reason are considered a single leave,” and the employee’s eligibility for that reason continues and “does not change during the applicable twelve-month period.”
Rights and Responsibilities Notice. In addition to the eligibility notice discussed above, employers must also provide written notice to an employee “each time the eligibility notice is provided” regarding specific FMLA expectations and obligations and the consequences for failure to meet the same. This notice may be accompanied by the applicable FMLA medical certification form, if required by an employer for FMLA leave authorization.
Designation Notice. Lastly, if requested FMLA leave is approved, employers are further required to provide notice to employees “designating leave as FMLA-qualifying.” Such notice must be provided within five (5) business days after an employer “has enough information to determine whether leave is being taken for a FMLA-qualifying reason,” absent extenuating circumstances. Thus, unlike the current regulations that require “provisional” FMLA leave designations in some circumstances, employers may now delay final leave designation until a required medical certification form has been returned.

Employee Notice Obligations

Foreseeable Leave. As before, employees must provide employers with at least thirty (30) days advance notice before FMLA is to begin if the need for leave is foreseeable. For cases where such notice is not practicable (e.g., because of lack of knowledge of approximately when leave will begin), notice must be given “as soon as practicable.” According to the DOL, it should be “practicable” to provide notice “either the same day or the next business day” of when the employee becomes aware of the need for foreseeable leave less than thirty (30) days in advance.
Unforeseeable Leave. When the need for leave is unforeseeable, as before, employees must provide notice to the employer “as soon as practicable.” However, the new regulations clarify that “it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave” (e.g., calling in to a specified number or contact individual).
Notice Content. Under the new regulations, for foreseeable leave, employees must provide sufficient information for an employer to be “aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” For unforeseeable leave, employees must provide “sufficient information for an employer to reasonably determine whether the FMLA will apply to the leave request.” As before, when seeking leave for the first time for a FMLA-qualifying reason, employees need not expressly assert or reference their rights under the FMLA. However, the regulations clarify that employees seeking leave due to a qualifying reason for which the employer has granted FMLA leave to the employee in the past “must specifically reference either the qualifying reason for leave or the need for FMLA leave.” (Emphasis added). The new regulations further provide that “calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

Medical Certification

Timing. Under the new regulations, employers now have 5 (versus 2) days after the employee gives notice of the need for leave (or the date that leave begins in the event of unforeseeable leave) to request that an employee furnish medical certification.
Separate Employee and Family Member Forms. Employers will recall that the current medical certification form recommended by the DOL is confusing, given that it is designed for leave involving both an employee’s own serious health condition and that of an employee’s family member. With the new regulations, the DOL includes two separate medical certification forms under – one for an employee’s own serious health condition, and one for that of a family member.
Incomplete / Vague Certification. If an employer receives an incomplete or “vague, ambiguous or non-responsive” medical certification, the employer must provide the employee seven (7) calendar days to cure any deficiency (unless “not practicable under the particular circumstances despite the employee’s diligent good faith efforts”). If the deficiencies specified by the employer are not cured within the time frame required, FMLA leave may be denied. Moreover, according to the DOL in a government-speak acknowledgment of the obvious, a certification that is not returned is not considered incomplete or insufficient, but “constitutes a failure to provide certification.”
Healthcare Provider Follow-Up. A significant change in the new regulations provides that employer representatives may contact a healthcare provider directly for purposes of clarification and authentication of medical certification forms after giving an employee the opportunity to cure any deficiencies. Such contact must be made using a healthcare provider, a human resources professional, a leave administrator or some other management official of the employer. However, the regulations further provide that “under no circumstances” may an employee’s “direct supervisor” contact the healthcare provider.
Extended / Chronic Conditions. Where a serious health condition (for an employee’s own condition or that of a family member) lasts beyond a single leave year, employers may now require employees to provide a new medical certification each subsequent leave year.
ADA / Workers’ Compensation Data. In a helpful clarification designed to address concern for HIPAA privacy rules, the new regulations state that employers may consider information provided by employees and their healthcare providers in connection with Americans With Disabilities Act (ADA) disability or reasonable accommodation requests and/or workers’ compensation claims. Such information may be used to evaluate medical certifications provided and determine an employee’s entitlement to FMLA-qualifying leave.

Fitness for Duty Certification

Essential Job Functions. In a change from current regulations, the new regulations allow employers to “require that the [fitness for duty] certifications specifically address the employee’s ability to perform the essential functions of the employee’s job.”
Job Safety Exception. Unfortunately, the current prohibition remains against employers requesting fitness to return to duty certificates for employees on intermittent or reduced leave schedules. However, under the new regulations, employers may request a fitness to return to duty certificate for such absences up to once every 30 days “if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave.”

Retaliation / Enforcement

Achievement and Incentive Awards. As before, the new regulations provide that with some limited exceptions, employees have a right to reinstatement to the same or an equivalent position that the employee held when leave began upon return from authorized FMLA leave. This includes the right to the same or equivalent pay, benefits and working conditions. However, the new regulations provide that if an employer award or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance which the employee has not met due to FMLA leave, “then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.”
Liability Waivers. In a significant departure from a prior 4th Circuit court ruling, the new regulations provide that employees may voluntarily settle or release any actual or potential FMLA claims against an employer without the requirement of court or DOL approval. However, prospective waivers of FMLA rights continue to be prohibited.

Military Family Leave

Military Caregiver Leave. Under the new regulations, eligible employees who are family members of covered service members are able to take up to 26 workweeks of leave in a “single twelve-month period” to care for a covered service member who: (1) is on the temporary disability retired list; (2) has a serious injury or illness “incurred in the line of duty on active duty” for which he or she is undergoing medical treatment, recuperation or therapy; or (3) is otherwise on outpatient status. For purposes of calculating leave entitlement, the regulation provides that the single twelve-month period “begins on the first day the eligible employee takes FMLA leave to care for a covered service member,” regardless of the method used by the employer to determine the employee’s twelve workweeks of leave entitlement for other FMLA-qualifying reasons.”
Qualifying Exigency Leave. The new regulations also address the second type of new military family leave entitlement. Specifically, the regulations provide the normal twelve workweeks of FMLA job-protected leave to eligible employees with a covered military member serving in the National Guard or Reserves to use for any “qualifying exigency” arising out of the fact that such member is on active duty or called to active duty status. The regulations define “qualifying exigencies” to include the following eight items (with various caveats): (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 addressed in the other categories, provided that both the employer and the employee agree to the timing and duration of such leave.

Employer Action Steps

As with any “clarification” of legal rules, the new FMLA regulations present both challenges and opportunities for employers. Thus, regardless of the pros and cons of the outcome, given the tight timeframe for implementation, employers should:

Quickly begin to evaluate their current FMLA practices and revise their current policies, notices and forms to comply with the new FMLA requirements.
Plan and schedule training for human resource professionals, front-line managers and other personnel involved in day-to-day implementation of the Act so that managers are prepared to address the new requirements when the final revised regulations go “live” in January 2009.

For assistance in updating your current FMLA policies and materials or training employees on the requirements of the new FMLA regulations, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits teams.