As reported in an earlier Alert, the U.S. Department of Labor (DOL) recently issued a final rule revamping the regulations governing the Family and Medical Leave Act (FMLA). The revised regulations go into effect on January 16, 2009, and employers should take steps now to prepare for compliance. The full text of the rule, which includes the DOL's sample notices and certification forms, is available at the DOL website at: http://www.dol.gov/esa/whd/fmla/finalrule.htm

Required Postings and General Notices

The new regulations include revised notice requirements for employers. All FMLA-covered employers have been and continue to be required to post a general notice explaining the FMLA provisions, and the DOL provided a revised prototype notice form, a copy of which is attached to this Alert. FMLA-covered employers who have eligible employees are also now required to provide this general notice to each employee by including the notice "in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written material exists, or by distributing a copy of the general notice to each new employee upon hiring." Distribution of both notices may be electronic as long as all employees have access. Employers can simply duplicate the text of the DOL's sample notice, or use another format that contains all of the information contained in the DOL form. If an employer's workforce contains a significant number of employees who are not literate in English, the notice must be issued in a language in which the employees are literate.

Employee Eligibility Requirements

The regulations also address a number of issues related to employee eligibility for FMLA leave. With respect to the question of how employers should count nonconsecutive periods of employment in determining whether an employee has been employed for at least 12 months, the new regulations state that an employer is not required to aggregate service when there has been a break of seven years or longer, unless the break was caused by military service or covered by a written agreement. Employers are thus required to look to prior service for up to seven years before the time of the leave in order to determine the employee's FMLA eligibility. Hours of service that would have been performed but for National Guard or Reserve military duty must also be credited.

While the determination of whether an employee has worked at least 12 months must be made as of the date the leave is to start, an employee may be on "non-FMLA leave" at the start of the leave, and such time must be counted toward the employee's length of service. For example, if a pregnant employee is two weeks short of the 12-month eligibility requirement when she gives birth, and the employer permits her to take leave, she can become FMLA-eligible during such non-FMLA leave. The leave time after the employee becomes eligible will be FMLA-protected.

Employee Notice Requirements

While certain employee notice requirements have not changed, the new regulations clarify what will constitute sufficient information from the employee to trigger the employer's obligations to consider the employee's FMLA status. As was the case previously, an employee must provide at least 30 days' notice if the leave is foreseeable. Notice of the need for unforeseeable leave must be given "as soon as practicable" given the particular circumstances. The employee must provide at least verbal notice sufficient to alert the employer to the need for leave for an FMLA-qualifying event, as well as the anticipated timing and duration. When an employee seeks leave for an FMLA-qualifying reason for which the employer has previously provided FMLA leave, the employee must specifically reference the qualifying reason for leave when notifying the employer.

Another change is that an employee may be required to comply with the employer's usual and customary call-in requirements when requesting leave, absent unusual circumstances. Thus, if the employer requires all employees to request leave in writing, or to contact a specific individual, the employee on or requesting leave must also follow those same procedures. An employee's failure to comply with these usual procedures can be grounds for delaying or denying the leave request.

Employer Eligibility and Designation Notice

In addition to the general posting and notice mentioned above, when an employee requests FMLA leave (or when the employer has sufficient information that leave may be for an FMLA-qualifying reason), employers must provide (1) an "eligibility" notice, which includes a notice of employee rights and responsibilities, and (2) a notice of the employer's "designation" of the leave as FMLA leave.

The employer must provide notice of eligibility within five business days (absent extenuating circumstances) of being advised by the employee of the need for leave. Currently employers must provide such notice within two business days. If the employer advises the employee that he/she is not eligible for FMLA leave, it must provide at least one reason for the ineligibility. The eligibility notice may be oral or in writing, and such notice may be given on DOL Form WH 381. The DOL's form also contains the required notice of the employee's rights and responsibilities under the FMLA.

The designation notice must be given within five days once the employer has received sufficient information to determine whether an employee's leave is FMLA-qualifying. DOL has designed Form WH 382 for this notice, which advises the employee either that the leave has been designated as FMLA-qualifying leave or that additional information is needed to make that determination. The designation may be retroactive as long as it does not cause harm or injury to the employee.

The designation notice contains two new, important provisions. First, the employer must include in the designation notice any requirement that the employee substitute paid leave for FMLA leave. Second, when a fitness-for-duty certification will be required upon return from leave, the employee must also be advised of this requirement in this notice, along with a list of the employee's essential job functions to be provided to the examining physician.

Medical Certification

The DOL has produced two new, simplified forms for certifying the need for medical leave. Form WH 380E is for employees seeking leave for their own serious health condition, while Form WH 380F is to be used when the leave is to care for a family member with a serious health condition.

While not all of these components are new, an employer may now request information about a health care provider's specialization, the particular diagnosis made, certification from the provider that intermittent or reduced leave is medically necessary, a statement identifying which specific job functions cannot be performed, and detailed information on the anticipated frequency and duration of required leaves. The new forms provide the opportunity to request information on symptoms and allow doctors to provide a diagnosis, all of which may permit employers to better evaluate the request.

One of the more significant changes is that employers may now directly contact the health care provider to authenticate and clarify information on the certification form (with an appropriate release if necessary). The rule identifies exactly who may contact the health care provider: another health care provider, human resources professional, the employer's leave administrator, or a management official. The employee's direct supervisor is expressly prohibited from contacting the health care provider.

The new regulations clarify that when an employee submits a medical certification form that is vague, incomplete or insufficient, the employer must advise the employee in writing as to what additional information is needed, and the employee must be provided at least seven days to complete and return the form. The seven-day period may be extended upon a showing of diligent good faith efforts to apply. If the employee fails to submit a complete and sufficient certification despite this opportunity to cure, the leave may be denied.

When a second or third opinion is requested, the employee (or family member, if applicable) must authorize the release of relevant medical information to the second- or third-opinion health care provider.

Medical Recertification and Annual Certification

The final rule confirms that each new leave year permits the employer to obtain a new certification, as well as a second or third opinion if appropriate. The rule also clarifies that employers may request recertification every 30 days unless the medical certification indicates that the minimum duration is more than 30 days. Even where the duration of the certification is longer than six months, the employer may require recertification every six months.

Serious Health Condition

Under the existing regulations, an employee who is incapacitated for more than three consecutive days must show that he/she is also receiving continuing treatment from a health care provider to establish a serious health condition and eligibility for FMLA leave. Much to the disappointment of the business community, the definition of "serious health condition" was not changed or clarified in any substantive way under the new regulations. However, the DOL has further defined what is meant by "continuing treatment." The employee must show that he/she visited a health care provider either (1) once within seven days of the first day of incapacity, and that a regimen of continuing treatment began, or (2) twice within 30 days of the first day of incapacity, unless extenuating circumstances prevented a follow-up visit. In the case of a chronic condition, the employee must visit a health care provider at least twice a year.

Scheduling Intermittent Leave

The DOL implemented new language to modestly increase employee responsibilities with respect to scheduling intermittent leave. Under the new rules, employees seeking intermittent leave of a foreseeable nature must make a reasonable effort to schedule the leave so as not to unduly disrupt an employer's operations. However, the rule also makes clear that if the health care provider determined a medical necessity for treatment at a particular time, that determination will prevail.

Calculating FMLA Leave and Increments of Leave

The final rule changes the method for calculating leave entitlement when an employee works a varied schedule, so that employers must now use the 12 month average of hours the employee worked prior to the commencement of the FMLA leave.

The DOL also clarified that when an employee's medical certification of an FMLA-qualifying condition prohibits him/her from working overtime he/she would otherwise have been required to work, the employee may be charged with FMLA leave for the overtime hours not worked. With respect to FMLA leave during a holiday week, when an employee takes a full week of FMLA leave during a week containing a holiday, the full week will count against the FMLA entitlement despite the holiday. An employee taking less than a full week of FMLA will not have the holiday count against him/her FMLA allotment unless he/she was required to work on the holiday.

Employers must account for intermittent leave using the shortest period of time used to account for other types of leave, so long as the increment is not greater than one hour, and the employee's leave entitlement may not be reduced by more than the amount of leave actually taken.

Bonuses/Attendance Awards

Where an employee's receipt of a bonus or award is predicated on achieving a particular goal, such as hours worked or perfect attendance, and the employee has not met that goal due to an FMLA leave, the employer may disqualify the employee from the bonus or award, so long as the standards are applied consistently to those on equivalent non-FMLA leave. This eliminates the distinction in the current rules between attendance and production bonuses.

Fitness-for-Duty Certification

As suggested above, an employee cannot be required to provide a fitness-for-duty (FFD) certification unless he/she was advised of that requirement in the employer's designation of leave notice within five days of the leave request. Assuming that such notice was provided, the health care provider may be required to verify that the employee is able to perform the essential functions of the position.

For employees on intermittent or reduced leave, an employer may require an FFD certification as often as every 30 days if reasonable safety concerns exist.

An employer has the same right to authenticate and clarify the terms of an FFD certification as it does the original medical certification.

Leave to Care for an Injured Service Member

Under changes to the FMLA earlier this year, an employee is now entitled to take up to 26 weeks of leave in a 12 month period to care for a covered service member with a serious injury or illness. The final rule assists employers in implementing this new leave. The service member must be the employee's spouse, parent, child or nearest blood relative. This military family leave is tracked in a separate 12 month period from any other FMLA leave; however, an employee is not entitled to take 26 weeks of leave to care for a family member under this provision plus an additional 12 weeks of leave under any of the other FMLA-qualifying reasons. The DOL has provided a separate certification form for such a request, WH 385.

Leave for a Qualifying Exigency

The second military family leave added to the FMLA earlier this year permits certain employees to take up to 12 weeks of leave due to a "qualifying exigency" arising out of the fact that the employee's spouse, child or parent is on active duty or has been called to active duty in support of a contingency operation (although this provision does not apply to families of members in the regular armed forces, just the National Guard and Reserves). This represents an additional basis for the standard 12 weeks of FMLA leave, not an additional 12 week entitlement. The new rule provides a definition of "qualifying exigency," including issues arising from short-notice deployment; military events and activities; alternate childcare arrangements and school activities; the need to make financial and legal arrangements; attending counseling; spending time with a covered military member on short-term leave during the deployment; and post-deployment activities. The appropriate certification form is WH 384.

Employer Actions Required

The new regulations provide employers with an opportunity to reevaluate their administration of FMLA leaves and to take the steps necessary to comply with the new rule. Employers should prepare for the January 16, 2009, effective date now, by familiarizing themselves with the new rule, reviewing handbooks (and specifically FMLA policies and procedures), and training all relevant personnel. Employers must post the new "general notice" in the appropriate, prominent location for such postings. The updated handbook (or separate FMLA policy) should be distributed to all employees with the name of a person to contact for additional information or questions.

These are just a few of the more significant changes to the FMLA regulations. A copy of the regulations and the sample notices and forms can be found at the link provided above.