After a two-year rulemaking process, the federal Department of Labor (DOL) issued its much-anticipated final regulations under the federal Family and Medical Leave Act (FMLA). The regulations will become effective on January 16, 2009, and will replace regulations that have been in place since 1995. Not only do the final regulations make substantial changes to the law, they also define and clarify the military family leave entitlements that were added to the FMLA in January of 2008 under the National Defense Authorization Act. This e-update highlights some of the more significant changes and additions to the regulations that will affect employers. For a more detailed analysis of the new, non-military family and medical leave rules click here and for a more in-depth review of the new military family leave rules click here The complete text of the new regulations may be found at DOL's website


Discussion New rules related to traditional family and medical leave

The new regulations make a number of changes to employee eligibility requirements. For example:

• In determining whether an employee has worked 1250 hours in the preceding 12 months, the employer must now credit an employee returning from National Guard or Reserve military duty with the hours of service that s/he would have worked but for the military service.

• To qualify as a “serious health condition” based on the employee’s incapacity for more than 3 consecutive calendar days and two doctor visits, both doctor visits must occur within 30 days of the first day of incapacity, absent extenuating circumstances.

• To qualify as a “serious health condition” based on the employee’s incapacity for more than 3 consecutive calendar days and one doctor visit, plus a “regimen of continuing treatment” (e.g., prescription medication under doctor’s supervision), the one or only doctor visit must take place within 7 days of the first day of incapacity.

• Employees requesting FMLA coverage for chronic health conditions are required to seek periodic treatment from a healthcare provider at least twice each year.

With regard to accrued paid time (e.g., vacation, sick and PTO), the regulations now permit employers to require that employees use any such paid time during an FMLA leave. Employers and employees may also voluntarily agree to supplement paid disability and workers’ compensation benefits with paid time off during FMLA leave. There are also clarifications with regard to intermittent or reduced schedule leave. For example, the option to transfer employees taking intermittent leave to a different position is not available when the intermittent absences are unscheduled or unforeseeable. Employers may only transfer employees on intermittent leave to an alternate position in cases of planned medical treatment. With regard to attendance awards, the new rules now permit employers to deny perfect attendance bonuses or related awards to employees who take FMLA leave, as long as employees with non-FMLA absences are treated the same way. On the issue of light duty assignments, the new rules provide that employees who voluntarily accept such assignments do not waive their rights to reinstatement to their original position. An employee’s right to restoration is held in abeyance during the light duty assignment, and if the assignment ends while the employee still cannot perform the essential functions of his original position, he is entitled to take FMLA leave. Also, time spent working in the light duty position cannot, as some courts had previously held, be counted toward the 12-week entitlement. The final regulations make clear that employees can lawfully waive their FMLA rights based on prior employer conduct without court or DOL approval. Prospective waiver of FMLA rights remains unlawful. This new rule settles a split of opinion on the issue among various courts of appeals. The DOL has placed a number of new technical notice obligations on employers, although in a welcome change for employers, the time period to provide notices after learning of an employee’s need for leave has been increased from 2 business days to 5. The new rules also make a number of welcome changes to the notice requirements for employees. For example:

• An employee seeking additional leave for a condition that has already been designated as FMLA qualifying must specifically notify the employer of this fact when requesting leave. Employees cannot merely “call in sick” for subsequent absences and trigger FMLA protection.

• When the need for leave is unforeseeable, employees are required to give notice of the need for FMLA leave on the same day that they learn of the need for leave, or the next business day -- instead of 2 days after the need arises, as was allowed under the previous regulations.

• Employers may delay or deny leave when an employee fails to comply with its standard notice and procedural requirements for requesting leave or calling in sick. Under the old regulations, the employer could discipline an employee for the failure to follow the call-in procedure, but could not delay or deny the leave.

There are several changes with regard to medical certifications, including an extension of the time for an employer to provide the certification form to an employee requesting leave, and a requirement that employers receiving incomplete certification forms notify employees of the defects and provide them 7 days to correct it. Finally, the new rules allow employers to seek medical re-certifications every 6 months in certain circumstances. And, when an employer needs clarification of a medical certification, the rules confirm that the employer may contact the physician directly, although there are some restrictions. Additionally, under some circumstances employers may now require fitness-for-duty certifications at the end of each intermittent leave period (up to once every 30 days) if reasonable safety concerns exist regarding the ability of the employee to perform her job. New rules related to “military exigency” leave The FMLA’s “military exigency” leave entitlements were not previously mandatory for employers, but will become mandatory upon the effective date of these new regulations. This new type of leave permits family members of National Guard or Reserve military service members called up to active duty to take up to 12 weeks of protected leave to manage certain affairs called “qualifying exigencies.” This leave does not apply to family members of Regular Armed Forces service members. The rule defines “qualifying exigencies” quite broadly and includes:

(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.

New rules related to “military caregiver” leave The FMLA’s “military caregiver” leave entitlements provide eligible employees with up to 26 weeks of leave in a “single 12-month period” when needed to care for a family member or “next of kin” who is a covered service member with a serious illness or injury incurred in the line of duty during active duty. The new rules confirm that employers are required to continue to provide paid health benefits for the duration of this potentially lengthy leave, and that such leave may also be taken intermittently. Notably, the rules also dictate a required method for calculating the 12-month leave year for this type of leave. The applicable “single 12-month period” begins on the first day the eligible employee takes such leave and ends 12 months after that date, regardless of the employer’s defined method for calculating an employee’s FMLA leave year. This means that employers may have to apply at least two different 12-month periods for the same employee. Moreover, the rules set up an extremely generous and complex leave tracking system by expressly providing that the 26-week entitlement must be applied on a “per-service member, per-injury” basis. This means that an employee may take 26 weeks of leave to care for one covered service member in a single 12-month period and then take another 26 weeks of leave in a different 12-month period to care for another covered service member, or to care for the same covered service member with a subsequent serious injury or illness. What This Means These new regulations will significantly change the way employers administer FMLA in 2009 and beyond. They will require a concerted effort by employers to update and expand their existing leave policies, procedures, and forms. They will also necessitate updated manager training programs to prevent unwitting violations of new obligations and restrictions. To say that these new rules are long and complex is somewhat of an understatement. With over 170 pages of actual regulations and over 500 pages of official comments, assimilating the DOL’s newly published regulations and integrating them with existing California Family Rights Act (CFRA) rules may be a daunting task for even the most seasoned leave experts and in-house counsel.

This e-updated was authored by Brenda Kasper and Denise Brucker. For more information, or questions, please contact Ms. Kasper, Ms. Brucker or any Paul, Plevin attorney at (619) 237-5200.