The U.S. Department of Labor (DOL) published its final regulations under the Family and Medical Leave Act (FMLA) on November 17, 2008. The new rules – the first major regulatory changes to the FMLA since its enactment 15 years ago – will take effect on January 16, 2009, requiring employers to adapt quickly to make the necessary changes in their policies and procedures.  

The following highlights some of the final rules.  

Changes in Notice Requirements  

The new regulations incorporate a revised framework for employer and employee notice requirements, including a revised time frame for employers to notify employees of their FMLA rights and responsibilities when they request leave. The DOL has provided new prototype notices for employers to use to fulfill these new obligations. Significantly, the final rules also make clear that, generally, employees can be required to adhere to their employers’ absence-reporting requirements. Employers must notify the employee that leave is designated “FMLA leave” within five days of the employee’s providing notice of leave. The designation may be retroactive if it “does not cause harm or injury” to the employee.  

Serious Health Condition  

As expected, the DOL adopted only modest changes to the existing regulatory definition of a “serious health condition” under the FMLA. For example, the DOL clarified that for an employee’s condition to qualify as a serious health condition as a result of “three consecutive days of incapacity plus two visits to a healthcare provider,” those two visits must occur within 30 days of the start of the period of incapacity and the first visit must occur within 7 days of the start of incapacity. Furthermore, for an employee’s condition to qualify as a “chronic serious health condition,” the employee must make at least two visits to a healthcare provider per year.  

Medical Certification  

Employees may be required to provide medical certification of a serious health condition. If the employer views a medical certification form as incomplete or insufficient, the new regulations require the company to notify the employee in writing, specify what information is lacking and give the employee seven calendar days to provide the additional information.

While healthcare providers still cannot disclose an employee’s medical information without his or her consent, employers can use an employee’s refusal to provide consent as grounds to question a certification. Employers can require a new medical certification when the serious health condition extends for more than one year.  

Light-Duty Assignments  

If an employee accepts a light-duty assignment before exhausting FMLA leave, the employer’s reinstatement obligation is deferred until the light-duty assignment is completed or the 12-month period in which the FMLA leave was taken has expired.  

Waiver and Release  

The DOL regulations codify its disagreement with the United States Court of Appeals’ decision in Taylor v. Progress Energy, which held that employees cannot voluntarily settle their past FMLA claims. The regulations state, in response to Taylor, that employees and employers should be permitted to voluntarily agree to the settlement of past claims without having to first obtain the DOL’s permission or a court’s approval.  

Substitution of Paid Leave  

The final rules provide that for an employee to substitute paid leave when using FMLA leave, employers can require that an employee abide by the terms and conditions for using paid leave. Therefore, if an employer requires an employee to give 10 days’ notice to use vacation leave and that notice is not provided, an employee would have no right to substitute the paid leave. In this circumstance, the employee would remain entitled to take the unpaid FMLA leave.  

Scheduling Intermittent Leave  

Employees seeking intermittent leave of a foreseeable nature must make a “reasonable effort” to schedule leave so as not to unduly disrupt an employer’s operations.  

Holidays  

When a holiday falls within a partial week of FMLA leave, the holiday is not counted as FMLA leave unless the employee would have otherwise been required to work on the holiday. If the holiday falls within a full week of FMLA leave, the entire week is counted as a week of FMLA leave.  

Bonuses  

Employers can disqualify employees from achievement bonuses if they fail to meet the goal because of the FMLA leave as long as employees on other leaves are treated in the same way. Employers still cannot count FMLA leave against employees under “no-fault” attendance policies.  

Exigency Leave  

The National Defense Authorization Act (NDAA) signed by President Bush earlier this year required that employers provide up to 12 weeks of leave in a 12-month period to employees to tend to any exigency arising from a service member’s call to duty. However, the right to exigency leave is limited to circumstances involving a family member in the National Guard or Reserves, or a retired member of the Regular Armed Forces or the Reserves. “Exigent” circumstances, according to the final rules, include “short notice” deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and any additional
activities agreed to by the employer and the employee.
 

Leave to Care for Service Members
 

The final rules also clarify when an employee can take leave to care for a family member who becomes ill
or injured as a result of service in the military — another leave entitlement provided by the NDAA earlier
this year. In short, under this form of leave, an employee who is the spouse, son, daughter, parent, or next
of kin of a covered service member is entitled to up to 26 weeks of unpaid leave in a single 12-month
period to care for that service member if the latter has “a serious injury or illness,” which includes the
service member (1) undergoing medical treatment, recuperation or therapy; (2) becoming an outpatient;
or (3) being included on the temporary disability retired list. The regulations explain that the 12-month
period to be used for purposes of tracking this leave entitlement begins when the employee starts using
his or her leave. Therefore, the 12-month period used for tracking other forms of FMLA leave may not be
used to track this entitlement. Significantly, the regulations make clear that an employee may use the
26-week entitlement for each service member and for each illness or injury incurred – a question left
open after the initial passage of the NDAA.