The Department of Labor (DOL) recently issued new regulations overhauling the prior Family and Medical Leave Act (FMLA) rules1 and implementing the additional leave rights created by the National Defense Authorization Act’s (NDAA) amendment of the FMLA.2 The lengthy new regulations contain many changes and clarifications. This client update highlights ten of the significant changes to existing FMLA practice.  

  1. Employee Handbook Requirements

The new regulations require employers who issue employee handbooks or other written guidance on leave and benefits to include all the information contained in the new Notice to Employees of Rights Under FMLA, DOL Wage and Hour publication WH-1420, in those policies. This new general notice is an Appendix to the regulations and can be found at the DOL’s Wage and Hour website.3 Employers may duplicate the text of this publication in their written materials, or use a different format to incorporate it into their policies, as long as all information in the publication is included.  

Some of the information in publication WH-1420 is not the type employers typically include in employee handbooks. Specifically, the form provides sections entitled “Unlawful Acts by Employers” and “Enforcement,” which list unlawful employer actions and rights to file a DOL complaint or lawsuit. WH-1420 also constitutes the poster which employers are required to conspicuously display on their premises.  

  1. Notice Obligations When Leave is Requested

The new regulations divide into three categories the types of initial notice an employer must give when it becomes aware that an employee is requesting leave that may be for an FMLA-qualifying purpose.

  1. Notice of Eligibility. Employers now have five business days (absent extenuating circumstances), instead of two, from the time the employee first informs the employer (or the employer otherwise has reason to believe) that the employee will need to take leave for an FMLAqualifying reason, to provide the employee with notice whether they meet basic FMLA eligibility standards (meaning those related to factors such as months and hours of service). An employer who determines that the employee is not eligible for FMLA leave must provide at least one reason for its denial. Employers may use DOL’s optional Notice of Eligibility Rights and Responsibilities (new form WH-381), Part A, to provide the required notice, or develop their own notice protocol. This notice may be oral or in writing.  
  1. Notice of Rights and Responsibilities. At the time notice regarding eligibility is provided, the employer must provide the employee with a written notice of rights and responsibilities under the FMLA. This notice, which includes, but is not limited to, any requirement to provide a medical certification, may be satisfied by using DOL’s optional WH-381, Part B, or the employer may use its own tailored notice, as long as it covers the required information.  
  1. Notice of Designation. The employer must provide written notice whether the leave will be designated and counted as FMLA leave within five days (absent extenuating circumstances) from when the employer has sufficient information to determine whether the leave qualifies for an FMLA purpose. Only one notice of designation must be provided for the same qualifying reason per applicable 12-month period. The regulations provide a new optional form “Designation Notice,” (new Form WH-382), or the employer may prepare its own form of notice. Among other information, the employer must inform the employee if any paid leave to be taken will be counted as FMLA leave. In addition, if the employer requires an employee who returns from medical leave to provide a fitness for duty certification, the employer must so state in its designation notice, and must include a list of essential job functions if the employer requires such certifications to address the ability to perform the essential functions of the job. The new regulations permit retroactive designations if the failure to timely designate does not cause harm to the employee or the employee and employer mutually agree to the retroactive designation.  
  1. Medical Certification  

Changes to the medical certification regulations are intended to promote improved communication and sharing of information. DOL has promulgated separate optional forms to verify an employee’s serious health condition and a family member’s serious health condition. These are forms WH- 380E and WH-380F, respectively. The DOL also has increased the amount of information employers may request. If the certification submitted is missing information or too vague, the employer must inform the employee in writing what additional information is required and provide an opportunity to cure within certain time limits.  

Under the new rules, employers may contact the employee’s health care provider directly in order to authenticate or clarify the medical certification, provided they have given the employee any necessary opportunity to cure any deficiencies, but may not ask questions beyond those on the DOL certification form. No longer must an employer hire a health care professional of its own to communicate with the employee’s health care provider. The employer may now communicate with the employee’s health care provider through an HR professional, a leave administrator, or some other management official, but in no circumstances can the employee’s direct supervisor contact the employee’s health care provider. If the employee does not provide authorization to the health care professional under HIPPA (the Health Insurance Portability and Accountability Act) to clarify information for the employer as needed, and does not otherwise clarify the certification so it is sufficient, the leave may be denied.  

  1. Intermittent and Reduced Schedule Leave Issues: Increments of Leave and Mandatory Overtime  

The new regulations permit employers to account for intermittent or reduced schedule leave using increments that are no greater than the shortest increment the employer uses to account for other forms of leave, but in any case not greater than one hour and not more than the leave actually taken. For example, if an employee arrives fifteen minutes late due to a serious health condition, the employer may count up to a full hour of FMLA leave if one hour is the shortest period the employer uses for other leave. However, if the employer permits the employee to begin work right away, only the fifteen minutes of leave actually taken can be counted for FMLA purposes. In rare cases, where it is physically impossible for an employee to begin work mid-shift, such as where a flight attendant is scheduled to work aboard an airplane, the employer may designate the entire shift as FMLA leave and count it toward the employee’s FMLA entitlement.  

The normal workweek is used in calculating how much FMLA leave has been taken. For example, an employee who normally works 40 hours per week who takes an 8 hour day off for intermittent leave has used one fifth of a week of FMLA leave. Similarly, an employee who normally works 8 hours a day who begins a four hour per day reduced leave schedule uses half a week of leave for every week the employee is on the reduced leave schedule. The DOL considers mandatory overtime part of the employee’s normal work week. Thus, if an employee normally works 10 hours of mandatory overtime each week after 40 regular hours, but due to FMLA leave cannot work the overtime, the employee may be charged with one fifth of a week of FMLA leave (10 hours of leave divided by the normal 50 hour week) for each week in which he/she does not work overtime. However, voluntary overtime that the employee does not work due to a serious health condition cannot be counted against the employee’s FMLA entitlement. If the workweek varies so much that there is no normal work week, a weekly average over 12 months is used for the calculation.  

  1. Serious Health Condition

A “serious health condition” includes conditions involving inpatient care or continuing treatment by a health care provider. The “continuing treatment” definition may be met under several different prongs in the regulations. The DOL clarified that the “incapacity and treatment” prong of the definition requires that the employee or family member experience more than three full consecutive calendar days of incapacity. The new regulations modify also the definition of “treatment” (which accompanies the period of incapacity) in the following ways: the employee’s first visit to a health care provider must be in-person and must occur within seven days of the first day of incapacity; and the employee must either have an additional treatment visit within 30 days of the first day of incapacity, absent extenuating circumstances, or receive a regimen of continuing treatment under the health care provider’s supervision within that time period.

The new regulations also clarify that an employee who takes leave under the “chronic health condition” prong (which provides for leave in cases of shorter incapacity where the incapacity is the result of a chronic condition such as diabetes or asthma) must visit with a health care provider at least twice per year. Prior regulations stated that the employee or family member with the chronic condition must make period visits to a health care provider for treatment but did not specify the frequency of the “periodic” visits.  

  1. Employers May Require Compliance with Their Policies for Substitution of Paid Leave 

In a welcome change for employers, the new regulations specifically permit an employer to require an employee to comply with the employer’s normal vacation or other paid leave policies when substituting paid leave for unpaid FMLA leave. An employee may substitute accrued unused vacation for FMLA leave at the employee’s option. Under the new regulations, however, the employee substituting paid leave for FMLA leave must comply with the employer’s paid leave policies, such as a policy that vacation may be used only upon two weeks written notice to the employer.

Under both the prior and current regulations, an employer may require an employee to use accrued paid vacation leave concurrently with FMLA leave. In addition, an employer that wishes to require an employee to use vacation leave can waive its normal prerequisites to the use of such leave.  

  1. Bonuses

The new regulations change the standard for the employer’s treatment of FMLA leave for bonus purposes. Under the prior regulations, the DOL distinguished between performance (including production) bonuses, which the employer could prorate to account for contributions missed due to FMLA leave, and absence-of-occurrence bonuses, such as perfect attendance bonuses, for which FMLA leave had to be disregarded. The new regulations treat all bonuses equally. An employer may deny or prorate a bonus for an employee who fails to meet the normal bonus criteria due to FMLA leave if the employer also would deny or prorate the bonus for employees on an equivalent leave status for a reason that does not qualify as FMLA leave.  

Although the new regulations say an employee who takes FMLA leave may be denied a bonus if the leave causes the employee to miss the criteria, the employer may not otherwise penalize the employee. Thus, an employer may not discharge or otherwise discipline an employee for failing to meet a production quota when the employee’s failure was due to FMLA leave. Rather, the production quota would have to be pro-rated to account for FMLA leave.  

  1. Light Duty

An employer may not require an employee entitled to FMLA leave to perform light duty in lieu of leave. However, many employees voluntarily agree to perform light duties instead of taking leave, particularly in workers’ compensation cases. The new regulations clarify that an employee otherwise entitled to FMLA leave who performs light duties is not using FMLA leave because the employee is “at work.”

In addition, the employee’s right to reinstatement to his or her original position continues until the end of the applicable 12-month FMLA leave year. Thus, the employee is entitled to be reinstated to his or her original position if the employee recovers and is once again able to perform the essential functions of his or her original job within the 12-month FMLA leave period.  

  1. Qualifying Exigency Leave

Under the NDAA and the new regulations, FMLA-covered employers must permit FMLA-eligible employees with a spouse, son, daughter, or parent who is in the National Guard or Reserves or is a military retiree and who is called to active duty in support of a contingency operation to use their 12-week FMLA leave entitlement for certain “qualifying exigencies.”  

“Qualifying exigencies” cover: leave because the eligible employee’s family member has been called up on short notice (short notice deployment); leave for the employee to be with his or her family member during periods of rest and recuperation during the deployment, which is limited to five days per instance of R&R; and leave to attend to a variety of military, family and household events necessitated by the employee’s family member’s being called to active duty. This last broad category consists of attending military events related to a family member’s call to active duty, arranging childcare and school activities, making financial and legal arrangements, attending counseling sessions, attending post deployment military ceremonies, and dealing with issues arising out of the death of a covered servicemember, such as funeral arrangements.  

This new qualifying exigency leave does not apply to active duty members of the regular Armed Forces. In addition, the regulations provide a mechanism whereby the employer can verify the employee’s claim that exigency leave is applicable in a particular instance.  

  1. Military Caregiver Leave

Military caregiver leave allows eligible employees to take up to 26 weeks of FMLA leave in a 12- month period to care for an injured servicemember who is the employee’s spouse, parent, child, or relative for whom the eligible employee is the “next of kin.” To qualify for this leave, the employee’s family member must be a current member of any of the Armed Forces branches (including the Reserves or National Guard) or a member of the Armed Forces who is on the temporary disability retired list (but not the permanent disability retired list) who incurred a serious injury or illness in the line of duty while on active duty. The regulations list the priority for determining next of kin and permit the servicemember to override the priority by designating a particular blood relative as his or her next of kin.  

The 26-week leave entitlement is the combined total for any qualifying FMLA leave, so an employee who takes the full 26 weeks of military caregiver leave is not also entitled to any additional weeks of regular FMLA leave for a different purpose during the same 12-month period, but could use 14 weeks of military caregiver leave and 12 weeks of other FMLA leave, for example.  

Regardless of the method the employer uses to calculate the 12-month period for other forms of FMLA leave, military caregiver leave must be calculated using a 12-month period measured forward from the first day the employee uses such leave. Thus, while employers often calculate

FMLA leave on a “rolling” basis as permitted by the regulations, they may not do so for the military caregiver portion of an employee’s FMLA leave.  

Practical Tips In light of the significant changes in the new regulations, employers subject to the FMLA should do the following:  

  • Update employee handbooks;
  • Review and update notices to employees who request FMLA leave; and
  • Ensure that persons responsible for FMLA issues become familiar with the new FMLA requirements and seek advice as needed.  

Conclusion  

This article summarizes some of the many changes to FMLA practice engendered by the new regulations.