On November 14, 2008, the United States Department of Labor (“DOL”) published its final regulations implementing the January 2008 amendments to the Family and Medical Leave Act (“FMLA”). Effective January 16, 2009, the final regulations also implement the National Defense Authorization Act, affording FMLA protections to families providing care for military service members. The final rules impose new obligations on employers and provide them with new tools to administer FMLA leave more efficiently. Employers must update their FMLA policies and forms, and train their human resources staff in the new regulations. Below are step-by-step guidelines for employers to follow in implementing the new regulations into (1) employee handbooks, (2) human resources staff training, and (3) current FMLA policies. This bulletin also provides guidance in implementing the military family leave regulations into FMLA polices.

1. Revisions to Employee Handbooks

  • Employers must now post a general FMLA notice to all employees: Under the final rules, all employers subject to FMLA must post a general FMLA notice even if they do not have FMLA-eligible employees. The notice is provided at General Notice WH Publication 1420. This general notice requirement can be satisfied by any one, or combination of, the following: (1) including the general notice in the employee handbook or similar written materials, (2) posting the general notice in a place visible by all employees, or (3) distributing the general notice to each new employee upon hire.
  • Employees must now comply with the employer's customary notice requirements when leave is requested: Absent "unusual circumstances," an employee requesting FMLA leave must follow the employer's customary call-in procedures for reporting an absence. Examples of “unusual circumstances” referenced in the final rules include: no one answered the company's telephone when the employee called; the company's voice mail box was full; and the employee could not use a telephone because he/she was seeking emergency medical treatment.
  • Substitution of paid leave offered by employer should be treated the same regardless of type of leave submitted: While FMLA leave is unpaid, the current regulations provide that employees may take, or employers may require employees to take, a "substitution of paid leave" concurrently with FMLA leave. Such "substituted leave" can include any accrued paid vacation, personal, family, medical or sick leave offered by the employer. The final rules combine the various procedural requirements of the current regulations and DOL opinions, and state that all forms of paid leave offered by the employer will be treated the same, regardless of the type of leave provided. Thus, employees electing to use short-term disability insurance, workers compensation insurance or any other type of paid leave concurrently with FMLA leave must follow the same conditions of the employer's policies that apply to other employees using such leave. The employee remains entitled to unpaid FMLA leave if he/she does not meet the employer's conditions for taking the substituted paid leave.
  • Fitness certifications may be required before employee can return to work: Currently, employers are allowed to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a "fitness for duty" certification upon return, confirming that they are able to resume work. The final rules clarify that employers may require that the fitness certification specifically address the employee's ability to perform the essential functions of that employee's job before he/she can be reinstated. Employers also may now ask for fitness for duty certifications for intermittent leave if reasonable safety concerns exist.
  • Perfect attendance awards can now take into account FMLA absences: The final rules allow employers to disqualify employees from perfect attendance awards, bonuses, or other benefits based on attendance where the employee has not met the goal due to FMLA leave. This must be done, however, in a nondiscriminatory manner, similar to how attendance awards would be handled for employees who were absent for reasons other than FMLA leave.

2. Revisions to FMLA Policies

  • Employers must now give three separate notices once FMLA has been requested: Employers are now obligated to give: (1) Eligibility Notice: either when employees request FMLA leave, or when the employer learns that employees' leave may be for an FMLA-qualifying reason, the employer must notify the employees whether they are eligible to take FMLA leave; (2) Rights and Responsibilities Notice: if employees are eligible for FMLA leave, the employer must provide employees with a written notice of the employees' “rights and responsibilities,” detailing the specific obligations of employees and explaining any consequences of their failure to meet these obligations; and (3) Designation Notice: once an employer has obtained sufficient information to determine whether employees' leave will be protected by FMLA, the employer must notify the employees that the leave is designated as FMLA leave. In implementing these new separate notice requirements, a new mandatory WH-381 FORM replaces the existing optional (WH-381) form and combines the written notice of eligibility and "rights and responsibilities" required by the regulations. Likewise, the WH-382 FORM has been added to serve as the employer's designation notice.
  • Deadlines for all required employer notices have been extended to five days: Absent extenuating circumstances, the new regulations extend the time for an employer to give various FMLA notices from two business days to five business days. The five-day period starts when the employer receives notice from employee of the need for leave or, in the case of unforeseen leave, the date an employee begins leave. The five-day period applies to each of the FMLA eligibility notice, rights and responsibilities notice, designation notice and medical certification notice.
  • “Light duty” time no longer counts in calculating FMLA leave entitlement: The final rules clarify that time spent performing "light duty" work does not count against an employee's FMLA leave entitlement. An employer must hold an employee’s right to job restoration in abeyance during any period of time when the employee performs "light duty" work or until the end of the applicable twelve-month period. At the conclusion of the light duty assignment, the employer must restore the employee to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement. If the employee is voluntarily performing "light duty" assignments, he/she is not on FMLA leave.
  • More specific definition of “serious health condition” should be added: Under the current regulations, a “serious health condition” entitling an employee to FMLA leave is defined as "an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider." The final rules clarify that "continuing treatment" occurs when an employee is absent more than three consecutive calendar days and visits a healthcare provider twice, with the two visits occurring within 30 days of the start of a period of incapacity. Furthermore, the final rules clarify that the first visit to the health care provider must take place within seven days from the first day of incapacity. Lastly, the final rules define “periodic visits” to healthcare providers as being at least two visits per year.
  • Annual and re-certifications can be required: The final rules allow employers to require annual medical certifications in cases where a serious health condition extends beyond a single leave year. Furthermore, the final rules clarify that employers may request medical re-certifications for continuing conditions every six months, rather than only after passage of the specified expected duration of the condition.
  • Employers must notify employees of certification deficiencies and allow time to cure: The final rules specify that if an employer deems a medical certification to be deficient, the employer must specify in writing the information lacking and give the employee seven calendar days to cure the deficiency.
  • Employees can retroactively waive their FMLA rights, but prospective waiver is prohibited: Resolving a split in the United States Appellate Courts, the final rules state that the FMLA’s waiver provisions do not prevent employees from settling past FMLA claims without DOL or court approval. Prospective waivers of FMLA rights without DOL or court approval continue to be prohibited under the final rules.

3. What Human Resources Should Know

  • Notices can now be provided electronically: Posting requirements may be satisfied through electronic posting so long as all employees have access to electronic information. Paper copies must be posted in locations readily visible to employees who do not have access to company computers.
  • Employers can now contact health care providers directly: Under the final rules, DOL drastically expands the limited medical inquiries permitted by the current regulations and instead allows employers to now contact health care providers directly to confirm employees' FMLA eligibility. In recognizing the Health Insurance Portability and Accountability Act (HIPAA), the final rules specify that the employer's representative contacting the health care provider must be either a health care provider, human resource professional, leave administrator, or management official. The employer representative cannot be the employee's direct supervisor. Employers may ask health care providers only such information as is required by the certification form. Additionally, second and third opinions as to the medical propriety of a certification no longer are permitted. The previous medical certification form has been replaced by two forms: the Certification of Health Care Provider for Employees (see WH-380-E FORM) and the Certification of Health Care Provider for Family Members (see WH-380-F FORM).
  • Increased liability for interference with employee FMLA rights: The final rules clarify that where an employee suffers individualized harm because the employer fails to follow the notification requirements, the employer is liable. The final rules contain expanded remedies for interfering with an employee’s rights under the FMLA. Employers now may be liable “for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.” Such increased remedies underscore the importance of employer compliance with the final rules.

4. Including the Military Family Leave Amendments into FMLA Policies

The final regulations also implement the Military Family Leave Amendments to the FMLA enacted in early 2008. These amendments are intended to alleviate the burden families with military members endure. There are two reasons military leave can be taken: (1) to care for an injured service member, or (2) to attend to affairs of a member of the National Guard or Reserves with a "qualifying exigency."

  • FMLA polices should be revised to include separate eligibility requirements for families caring for injured service members: Families with service members can take up to 26 work-weeks of FMLA leave within a twelve-month period to care for a service member who gets hurt in connection with active military duty. Military FMLA expands its protections for military families to “next of kin,” defined to include: spouses, children, parents, grandparents, aunts, uncles and first cousins. Eligible employees can take more than one period of leave if the leave is to care for different covered service members or to care for the same service member with a subsequent serious injury or illness so long as it is within the same 26-work-week period. Under the final rules, a “single twelve-month period” for purposes of military caregiver leave is a rolling twelve-month period commencing on the date when an employee first takes leave to care for a covered service member with a serious injury or illness.
  • FMLA polices should be revised to include separate eligibility requirements for families attending to the affairs of members of the National Guard or Reserves: Family members of National Guard and Reserve personnel are also entitled to take up to 12 work-weeks of FMLA leave to manage the military member's affairs while that military member is on active duty in support of a contingency operation for any “qualifying exigency.” Under the final rules, a “qualifying exigency” can 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. Additional activities to address other events arising from the covered military member’s active duty or call to active duty status also may be deemed a “qualifying exigency” if the employer and employee agree that such leave qualifies, and agree to both the timing and duration of such leave. A new optional WH-384 FORM has been adopted to allow employees to self-certify the reasons supporting their claims of qualifying exigencies. Although employers may not request additional information from an employee who has completed a self-certification form, employers may contact both third parties to verify activities certified by the employee and the Department of Defense to verify the service member's active duty. An employee’s obligation to provide notice of leave due to a qualifying exigency is triggered when the employee first seeks to take such leave. Where this leave is foreseeable, eligible employees must provide notice to the employer that is “reasonable and practicable.”
  • Medical certification for military caregiver leave must be differentiated: DOL concluded that employers’ certification requirements for taking leave to care for a covered service member necessarily differ from certifications for taking leave to care for a family member with a serious health condition because the “triggers” for taking each type of leave are different. Accordingly, DOL has created a new optional WH-385 FORM for employers' use in obtaining medical certifications of Military Caregiver Leave.
  • Military leave and regular FMLA leave cannot be taken at the same time: Leave that qualifies both as leave to care for a covered service member and 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 types of leave. Instead, such leave must be counted only as military caregiver leave.  

Practical Implications for Employers

Employers quickly need to master the amended FMLA regulations in order to comply with their new obligations under the final rules. Employers must carefully revamp their employee handbooks, FMLA policies, and institute training for their human resources departments to ensure that they are in compliance with the final rules. Employers should be careful to closely follow established FMLA procedures and implement the newly required and optional forms where appropriate.