The Family and Medical Leave Act (FMLA) was enacted in 1993 to help working Americans meet the dual demands of work and family. The main purpose of the FMLA was to guarantee eligible employees 12 weeks of unpaid leave each year to care for a newborn or newly adopted child, seriously ill family member, or to recover from their own serious health condition, while ensuring job security. Over the years various provisions of the FMLA were interpreted differently throughout the courts.
Since the U.S. Supreme Court’s ruling in Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), it has been anticipated that the Department of Labor (DOL) would issue proposed regulations that addressed, among other things, the Court’s invalidation of the regulation that FMLA leave would begin only after the employer notified the employee in writing that such time would count as time off for FMLA purposes. In 2002 and 2003, focus groups met to discuss FMLA regulatory changes, without any further progress. Although various timetables have been proposed in the past, including June 2006, for the DOL to issue a rule for public commentary, no proposed rule has been forthcoming – until now.
On November 17, 2008, the DOL published its final rule that will provide the first amendments to the FMLA. The amendments take effect January 16, 2009. The key changes can be categorized into 11 key areas:
1. Military Family Leave. The final rule provides for two new leave entitlements: Military Caregiver Leave and Qualifying Exigency Leave. Under Military Caregiver Leave, eligible employees will be entitled to take up to 26 workweeks of leave in a 12-month period to care for a covered servicemember with a serious illness or injury incurred in the line of duty while on active duty. Qualifying Exigency Leave applies to eligible employees with a covered military member in the National Guard or Reserves; it allows an eligible employee to use the normal 12 workweeks of FMLA leave for a qualifying exigency, defined in broad terms as: (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.
2. Penalties for failing to designate leave. The final rule incorporates the decision of the U.S. Supreme Court in Ragsdale v. Wolverine World Wide, by removing the regulatory penalty of not properly designating FMLA leave. The final rule, however, does allow for possible liability where an employee can show that the failure to follow the notification rules has caused individualized harm.
3. Light Duty. The final rule clarifies that light duty work does not count against an employee’s FMLA leave entitlement and that an employee’s right to job restoration is held in abeyance during the period of time the employee performs light duty or until the end of the applicable 12-month FMLA leave year.
4. Waiver of Rights. The final rule clarifies the DOL’s position that an employee can voluntarily settle or release a FMLA claim without court or DOL approval.
5. Serious Health Condition. The final rule provides guidance regarding three points clarifying existing guidelines that define a serious health condition. Under current guidelines, a serious health condition is defined as more than three consecutive, full calendar days of incapacity with two visits to a health care provider. Under the final rule the two visits must occur within 30 days of when the period of incapacity starts, and the first visit must be within seven days of when the period of incapacity starts. Another definition of serious health condition is more then three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. Under the final rule the first visit of the continuing treatment must take place within seven days of when the period of incapacity starts. The third point of clarification further defines ‘periodic visits’ relating to a chronic serious health condition as involving at least two visits to a health care provider per year.
6. Substitution of Paid Leave. The final rule codifies that FMLA leave may be taken concurrently with other paid leave, or that an employer may require the use of accrued paid leave. All forms of paid leave under the final rule will be treated the same.
7. Perfect Attendance Awards. Under the former guidelines, FMLA leave could not be counted against an employee when considering perfect attendance awards. The final rule changes this policy; an employer can deny a perfect attendance award to an employee who has taken FMLA leave, so long as the policy treats all employees, including those on non-FMLA leave, the same way.
8. Employer Notice Obligations. The final rule requires employers to provide more information to employees. The information is in the form of a new poster, notice of eligibility, notice of rights and responsibilities, and notice of FMLA designation. The time for providing the notices has been extended from two business days to five business days.
9. Employee Notice. The final rule provides that an employee who takes FMLA leave due to an unexpected situation must follow an employer’s usual call-in or notification procedures for reporting an absence, unless unusual circumstances exist.
10. Medical Certification Process. Under the final rule, an employer representative who contacts a health care provider must be either a health care provider, human resources professional, a leave administrator, or management personnel (but not the employee’s direct supervisor). Furthermore, when seeking medical certification, employers may not ask for more information than what is contained on the certification form. If a certification form is deemed incomplete or insufficient the employer must notify the employee in writing specifying what information is missing, and must allow the employee seven calendar days to correct the deficiency. With respect to recertification, the final rule allows for a new medical certification each leave year for medical conditions lasting longer than one year. The final rule also clarifies that an employer may request recertification of a chronic condition every six months in conjunction with an absence.
11. Fitness-for-Duty Certification. Under the final rule, employers can require that the fitness-for-duty certification refer to the employee’s ability to perform the essential functions of that employee’s job. The final rule also provides that when there is a concern of job safety, an employee who is taking intermittent leave can be required to provide a fitness-for-duty certification.
Along with the revisions discussed above, the DOL has come out with a revised FMLA poster, as well as revised optional forms that employers can use.
For more information regarding the revisions, how it may impact your business, and assistance in updating your company handbook, please contact one of our Labor and Employment Practices Liability Group.
