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Final FMLA Rules Will Require Many Employers to Revise Their Policies

On November 17, 2008, the U.S. Department of Labor issued its final new regulations for the Family and Medical Leave Act ("FMLA"). The new rules will take effect on January 16, 2009. The new rules do not provide employers as much relief from the FMLA's onerous requirements as many had hoped. Although the final rules do offer employers help in some areas, they also impose new burdens on employers in other areas. Below is a summary of the final rules, which can be accessed HERE.

Employee Eligibility for FMLA Leave

The final rules retain the former rules' requirement that an employee be employed for 12 months (which need not be continuous) and have worked 1,250 hours in the 12-month period prior to taking leave. However, they add a break in service rule, under which if an employee has had a break in service of 7 years or more, the time prior to that break is not counted towards the 12 months of employment requirement unless the break was due to the employee performing military service, or if the employer agrees to count the prior employment.

Definition of a Qualifying "Serious Health Condition"

The final rules have not narrowed the broad definition of "serious health conditions" for which employees can take FMLA leave. Under the final rule, "continuing treatment" for a "serious health condition" is redefined as a period of incapacity of more than 3 consecutive calendar days and requires that an employee (or covered family member) visit a health care provider within 7 days of the onset of the incapacity. Employees with chronic health conditions will need to make at least two doctor's visits per year for their condition to qualify. These new requirements will place a greater burden on employees seeking to take FMLA leave to see (or have their family member see) a health care provider.

Employers' Notice Requirements

The final rules have greatly modified employers' obligations to provide notice to employees of their FMLA rights. Employers' notice obligations are three-fold. First, employers will need to post in their workplace a general notice of employees' FMLA rights and obligations. This can be accomplished through an employee handbook. In the alternative, this can be done electronically, provided that all employees and applicants have access to the electronic posting.

Second, employers will have 5 business days (an increase from the former 2 business days) to notify an employee whether he/she is eligible for FMLA leave, after receiving a request for leave, or after learning that an employee's leave might qualify for FMLA leave. If the employee is not eligible for leave, the employer must notify the employee of the reasons why. Also, the employer will need to provide the employee a notice of rights and responsibilities under the FMLA. The final rule provides a prototype eligibility notice and a rights and responsibilities notice that employers may use.

Third, the final rules require employers to provide employees with more specific written notice regarding their use of FMLA leave. An employer will need to notify employees of the number of hours, days or weeks that an employer will designate as FMLA leave. Employers may provide the "eligibility" and "designation" notices at the same time, if they have sufficient information to do so.

If the employer will require a fitness-for-duty certification for an employee to return to work, it must so notify the employee, and also provide a list of the employee's essential job functions so that a health care provider can make that determination. This is an improvement over the former regulations, which made it quite possible for employees to be reinstated even when they were not truly fit to do their job, based upon a health care provider's lack on information about the nature of the employee's job.

Employees' Notice Requirements

Under the former regulations, employees had 30 days to notify employers of their need to take FMLA leave when the need for leave was foreseeable. If providing 30 days' notice was not possible, the employee hds to provide notice "as soon as practicable". The new rules stay the same with regard to foreseeable leave. However, with regard to unforeseeable leave, the final rules are more employer friendly. Henceforth, "as soon as practicable" will generally mean the same or the next business day. If an employee does not provide timely notice to the employer, without reasonable excuse, or fails to follow the employer's usual notice and procedural requirements for calling in absences or requesting time off, the final regulations allow employers to delay the onset of FMLA leave.

More ever, the final rules require employees to provide more detailed notice to their employer than the prior rules. Henceforth, an employee must provide the employer sufficient notice to allow the employer to determine whether the leave is FMLA-qualifying. Although, in the past, merely calling in "sick" in some cases might have been enough to put an employer on notice that the employee may need FMLA leave, under the new rules, this will be insufficient, and the employee must provide the employer more information about the health condition. If the employee fails to respond to the employer's attempts to obtain more information about the condition, leave can be denied.

Medical Certification Requirements

The medical certification rules have changed significantly. Whereas, under the former rules, employers had 2 days to request medical certification from the date an employee requested leave, under the new rules, they will have 5 days to do so. However, employees will still have 15 calendar days to have the medical certification returned to the employer. Additional time is available if it is not practicable to have the form returned within 15 days.

The content of the medical certification form has undergone significant changes. The new certification form requires the health care provider to state his/her specialization, to provide the medical facts regarding the patient's condition, and to indicate whether intermittent or reduced schedule leave is medically necessary. The new rules change the medical certification form to better assist health care providers in providing the requested medical information. The final rules provide prototypes medical certification forms.

If the employer determines that the medical information received is insufficient, the employer must notify the employee in writing of what additional information the employer needs. Employees will be provided 7 calendar days to do so. Leave can be denied if the employee fails to correct the deficiencies.

Under the former rules, employers could not directly contact employees' health care providers to obtain more information, except in worker's compensation cases (and even this right has become limited in Tennessee under a recent Tennessee Supreme Court decision). The final rules allow employers to directly contact an employee's health care provider under certain circumstances. There could be a conflict between federal and state law regarding what is permissible, which could lead to litigation to determine whether federal law preempts state law in this area.

Under the new rules, employers will be permitted to directly contact health care providers to clarify or authenticate documents, rather than have to go through another doctor to do so, as under the former regulations. The employer's health care provider, an HR professional, a leave administrator, or management official (but not the employee's direct supervisor) can contact the employee's health care provider to authenticate the certification form. Under the former rules, only the employer's health care provider could do so, with the employee's prior permission.

Intermittent Leave

Many employers asked the Department of Labor to consider raising the minimum amount of FMLA leave an employee could use intermittently. However, the new rules leave this area the same as it was under the former rules. Under the former and new rules, employees can take leave in the shortest unit of unpaid time off established under an employer's timekeeping systems (at least one hour).

The former regulations required employees to attempt to schedule intermittent and reduced schedule leaves that are foreseeable in a manner that did not unduly disrupt the employer's operations. Under the new rules, employees will be required to "make a reasonable effort" when scheduling leaves to avoid disrupting their employer's operations. This is a heightened standard for employees to satisfy, but still not as much as many employers had hoped for.

Common Illnesses

The Department of Labor has refused to heed many employers' request that the regulations exclude common illnesses (such as the common cold, the flu, earaches, upset stomach and headaches) from the definition of a covered "serious health condition". The new rules clarify that common ailments can qualify for FMLA leave if they otherwise satisfy the regulatory definition of a "serious health condition", which remains largely unchanged.

Fitness for Duty Issues

Under the former regulations, an employer could not require from a health care provider more than a "simple statement" of an employee's ability to return to work. Under the new rules, when requested to do so by an employer, a health care provider must assess the employee's ability to return to work based upon the essential functions of the employee's position, which would be specified by the employer in the new eligibility notice to be provided to employees. The new rules also allow an employer to require fitness-for-duty certifications from employees who have taken intermittent or reduced schedule leave. An employer can require fitness-for-duty certification once every 30 days, if an employee has actually used FMLA leave during the 30-day period and reasonable safety concerns exist. In addition, under the new rules, under certain circumstances, an employer is allowed to directly contact health care providers to clarify or authenticate the fitness-for-duty certification provided to the employer.

Giving Employees FMLA Leave Before Eligibility

Some employers allow their employees to take FMLA leave even if they have not yet achieved 12 months of service. These employers may seek to count this time off towards an employee's 12-week FMLA entitlement when the employee later reaches the 12-month service mark. Under the new rules, this will not be permitted and, in such cases, the employee will be entitled to a full 12 weeks of FMLA leave when they reach the 12-month mark. This may deter employers from providing employees time off prior to their attaining FMLA eligibility. Employers will need to remain careful not to terminate employees' employment to prevent them from taking FMLA leave when they do reach 12 months of service, based on a retaliation or interference theory.

Male Employees and Prenatal Care

Although the former regulations did not expressly address the subject, employers have been advised that male employees can qualify for FMLA leave to take their pregnant spouses to the doctor for prenatal care visits. The new rules make this explicitly clear, that both pregnant employees and their spouses may take FMLA leave to attend prenatal care appointments. Male employees may also qualify for intermittent FMLA leave to assist their pregnant spouses having severe morning sickness.

Perfect Attendance Awards

One area where the former regulations greatly bothered some employers is with perfect attendance bonuses and awards. Formerly, employers had to treat employees as if they were at work, when they in fact were away from work on FMLA leave, for purposes of perfect attendance programs. Under the new rules, employers will not have to provide perfect attendance awards to employees who take unpaid leave under the FMLA. However, employers will need to treat employees taking other forms of leave the same way. For example, if an employee using vacation does not forfeit right to a bonus, an employee using paid FMLA leave would also not forfeit that right.

Waivers and Releases of FMLA Claims

Some recent court decisions have held that employees cannot effectively settle and release FMLA claims. The new rules allow employers and employees to voluntarily settle past FMLA claims without having to obtain permission from a court of law or the Department of Labor.

"Light-Duty Time"

The new rules eliminate a provision in the former regulations allowing employers to count the time an employee is on light duty as FMLA leave. Employers will not be able to charge FMLA time during periods of light duty work. An employee's right to be restored to his/her job will be tolled during their light duty work. If the light duty assignment ends before the employee is able to return to regular duty, the employee can use the remainder of the 12-week FMLA entitlement. This may have the effect of giving employees more than 12 weeks of job protection. However, the employee's right to job restoration while on light duty expires at the end of the 12-month period that the employer uses to calculate usage of FMLA leave.

Military Leave

The new rules provide guidance regarding recently enacted FMLA military-related leave. The regulations define what constitutes a "qualifying exigency", which allows members of the National Guard and Reserves to take exigency leave under the FMLA: (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 to address other events which arise out of the covered military member's active duty or call to active duty status, provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. A prototype form has been developed to allow employees to identify the qualifying exigency that they claim.

The new rules permit covered service members to designate in writing another blood relative as their nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member's next of kin and may take FMLA leave to provide care to the covered service member, either consecutively or simultaneously.

Under the new rules, leave that qualifies both as leave to care for a covered service member and "traditional" FMLA leave taken to care for a family member with a serious health condition during the "single 12-month period" cannot be designated and counted as both. Under the new rules, employees are not required to notify their employer when they first become aware of a covered family member's active duty or call to active duty status. The employee's duty to provide notice of leave due to a qualifying exigency is triggered when the employee first seeks to take such leave. However, where this leave is foreseeable, employees must provide notice to the employer that is "reasonable and practicable".

The final rules have separate requirements regarding the medical certification required for an employee to take military caregiver leave. The Department of Labor has developed a separate prototype medical certification form for this purpose.

The Future

It is possible that the Obama administration and a Democrat-controlled Congress might seek to further revise the Department of Labor's final rules. This could be done through direct changes to the FMLA statute (which might also reduce the number of employees required for employer coverage from 50 to 25) or though another Department of Labor rulemaking. Given the amount of serious issues on the next administration's "plate", further changes to the FMLA might take a long time, so employers should plan now to comply with the new FMLA rules, which will take effect in less than 2 months' time.

What to Do

Many employers will need to substantially revise their FMLA policies to comply with the new regulations, which take effect on January 16, 2009. Wimberly Lawson will be happy to assist employers with their efforts to comply with the new FMLA regulations.


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