On November 17, 2008, the Department of Labor (“DOL”) published final regulations interpreting the Family and Medical Leave Act (“FMLA” or the “Act”). These regulations took effect on January 16, 2009. The DOL’s stated goal was to address United States Supreme Court and lower court decisions that had invalidated certain portions of the Act, incorporate public comments to make the regulations clearer so as to reduce confusion and tension between employers and employees and create two new types of leave for family members of military personnel.

Unfortunately, the new regulations do not address employers’ biggest concerns — specifically, raising the bar for what qualifies as a serious health condition and reining in abuses of unscheduled, unforeseeable intermittent leave. The regulations do, however, make important changes to the administration of claims for FMLA leave and provide two new types of leave related to individuals who serve in the armed forces. We summarize below the most significant changes the regulations have on the FMLA.

Serious Health Condition

  • Where designation as a serious health condition is based upon absence plus treatment, the second visit to a healthcare provider must be within 30 days of onset of incapacity absent extenuating circumstances.
  • For chronic conditions, the employee must see his/her healthcare provider twice per year.

Eligibility

  • Although the twelve-month requirement for eligibility does not need to be continuous, employment prior to a continuous break in employment of seven years or more does not need to be counted.
  • Discretionary leave prior to eligibility does not count toward the twelve-week FMLA entitlement.

Holidays

  • Paid holidays count toward the twelve-week FMLA entitlement if leave is one week or more. They do not count for shorter leaves.

Employer Notice — General Requirements

  • New poster issued.
  • New general notice of rights that should be placed in employee handbooks.

Employer Notice — Requests for Leave

  • Eligibility notice must be conveyed within five business days of the employee’s request for leave (previously, notice was required within two days).
  • Designation notice must be provided within five business days of the determination of a qualifying reason for leave.
  • Fitness to return to work certifications may require a list of essential job functions.
  • Ragsdale v. Wolverine World Wide, Inc. is still good law — Employer may retroactively designate leave as FMLA leave unless the employee can show prejudice.

Employee Notice

  • Employers can require use of regular call-in procedures for intermittent leave.

Medical Certification

  • Two new, expanded DOL medical certification forms are provided.
  • Employees are to be provided seven days to correct incomplete forms.
  • Employers may directly contact providers if the information provided is unclear.

Bonuses

  • Employers may proportionately deduct from most bonuses for time away from work or deny an employee a bonus if the bonus is based upon hours worked, products sold or perfect attendance, so long as the employer treats employees taking FMLA leave the same as employees taking non-FMLA leave.

Releases and Waivers

  • Taylor v. Progress Energy is reversed — No DOL or court approval is required for releases of past FMLA violations.

Two New Types of FMLA Leave Related to Military Service

Congress created two new types of family leave granted to family members of United States military servicemembers. The first type of leave is military caregiver leave. Military caregiver leave provides up to 26 weeks of protected unpaid leave in a single 12-month period so that an eligible employee may care for a spouse, child, parent or next-of-kin (closest blood relative) who is a covered servicemember with a serious injury or illness incurred while on active duty. This is more than double the 12 weeks afforded for other types of leave under the FMLA. This leave is applied on a per-covered servicemember, per-injury basis, meaning that an employee can take more than one period of 26 workweeks of leave during the course of his/her employment if the leave is to care for different servicemembers or the same servicemember who has suffered from more than one injury or illness. However, the employee may take only a total of 26 workweeks of leave within a single 12-month period.

The second type of leave is “qualifying exigency” leave. This leave can be taken by eligible employees as a result of a number of exigencies in connection with the employee’s spouse, son, daughter or parent being on active duty or called to active duty. Exigent circumstances leave does not apply to all those in the military; rather, it is only available to family members of individuals called or ordered to active duty as part of a contingency operation who are retired members of the regular armed forces, or members of the retired Reserve, the Ready Reserve, or the National Guard. Qualifying exigencies include short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation and post-deployment activities.

Both types of leave — military caregiver leave and qualified exigency leave — can be taken intermittently or all at one time. Also, paid leave can be substituted for this unpaid leave, as with other forms of FMLA leave. Employees may be required to provide certifications for both types of leave. The certification for qualifying exigency leave might include a copy of the military member’s active duty orders or other documentation indicating active duty in support of a contingency operation and the dates of service. Employers may also request certification from employees taking military caregiver leave. Such certification might consist of information by a healthcare provider as to whether the injury or illness was incurred in the line of duty, the date of commencement of the injury or illness, its probable duration, a description of the care required and an estimate as to the duration of time the servicemember will be in need of that care.

The new regulations provide substantive revisions and clarifications important to both employers and employees. Employers must review and revise their leave policies, forms and posters to ensure they comply with the new rules, and human resources staff and supervisors should be advised about the changes in employer obligations under the Act.