The U.S. Department of Labor (the “DOL”) has published new Family and Medical Leave Act (“FMLA”) regulations (the “Regulations”), effective Jan. 16, 2009, including new military family leave entitlements and changes to many sections of the regulations to provide clarity for employees and employers about their responsibilities and rights under FMLA leave. The following is a summary of the most significant changes:  

I. Notice Requirements

A. Employer Notice Obligations (§ 825.300)

  1. Policy. A general notice regarding the FMLA’s provisions and procedures must be posted in a conspicuous place at the employer’s worksite that is accessible to applicants and employees regardless of whether any employees are eligible for FMLA leave. If any of the employer’s employees are eligible for FMLA leave, the employer must also include such notice in a handbook or provide it separately to each new hire. Under the new Regulations, electronic posting and distribution is sufficient to meet these requirements. To view the DOL’s approved poster, click here.  
  2. Eligibility. An employer must notify an employee who requests FMLA leave within five (5) business days of the request whether he or she is eligible, and if not, the notice must explain at least one reason for ineligibility. For subsequent requests during the same FMLA year, a new notice is required only if there is a change in eligibility status.  
  3. Rights and Responsibilities. Each time an eligibility notice is required, the employer must also provide a rights and responsibilities notice. The DOL provides a form1 with all information required for the eligibility notice and rights and responsibilities notice.  
  4. Designation. Upon determination that a leave does or does not qualify as FMLA leave, an employer must notify the employee of the determination within five days. This notice must specify the amount of leave that will be counted as FMLA leave. If the amount is unknown, subsequent designation notices must be provided at the employee’s request, up to once every 30 days. This notice must also specify whether a fitness for duty certification will be required at the end of the leave.  

B. Employee Notice Obligations

  1. Timing (§ 825.302(a)). Thirty days notice is required before FMLA leave if possible; otherwise an employee must give notice as soon as is practicable. If the employee does not provide notice of foreseeable leave, the employer may request (and employee must explain) the reason(s) why such notice was not practicable. If an employee fails to provide notice, an employer may count the time taken prior to the notice as absences not covered by FMLA and apply its attendance policy.
  2. Method (§ 825.302(d)). Though a verbal request for FMLA leave is generally sufficient, an employer may require an employee to comply with notice and procedural requirements including written notice of the request, reasons, duration, and anticipated start date of the leave. No written notice may be required, however, for emergency or unforeseeable leave.
  3. Content (§ 825.302(c)). An employee requesting leave must provide sufficient information in the request for an employer to reasonably determine whether the leave qualifies as FMLA leave. The employee is not required to mention the FMLA in the request.  

II. Health Condition Definitions

A. Serious Health Condition (§ 825.115). Under the new Regulations, a condition causes an “incapacity” for the purpose of determining whether it constitutes a “serious health condition” for FMLA leave if: (1) its duration is more than three full consecutive days, (2) it requires in-person treatment by a health care provider at least once within seven days of the first incapacity, and (3) it requires either a regimen of continuing treatment initiated by the health care provider during the first treatment (in the case of pregnancy) or a second in-person visit to the health care provider for treatment within 30 days. B. Chronic Conditions (§ 825.115). A condition is “chronic” if it requires visits for treatment by a health care provider at least twice a year and continues over an extended period of time. A chronic condition may cause episodic incapacity rather than a continuing period of incapacity. C. Pregnancy or Birth (§ 825.120). In addition to leave after the birth of a child, employee-husbands are entitled to FMLA leave, if needed, to care for a pregnant spouse who is incapacitated, to care for her during her prenatal care, or to care for the spouse following the birth of a child if the spouse has a serious health condition. This leave is not available to a non-spouse father. D. Needed to Care For (§ 825.124). An employee does not need to be the only individual or family member available to provide physical and/or psychological care for another to qualify for FMLA leave. E. Health Care Provider (§ 825.125(b)). The definition of “health care provider” under the FMLA now includes physician assistants authorized to practice under state law. All medical paraprofessionals (including physician assistants, nurse practitioners, nurse-midwives and clinical social workers) must perform within the scope of their practice, as defined by state law.

III. Certification Process

A. Serious Health Condition Certification (§ 825.305(b)). An employee must submit a complete medical certification within 15 days after the employer’s request unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts (or the employer provides more time). If certification is timely submitted, but is not complete or sufficient, the employer must provide the employee with seven days to cure the deficiency or deficiencies and a list of what information is still needed. The DOL provides two medical certification forms (one for the employee’s own serious health condition and one for a family member’s serious health condition).

  1. Authentication or Clarification (§ 825.307). An employer may contact a health care provider to authenticate or clarify a medical certification, but the representative for the employer who contacts the health care provider may not be the employee’s direct supervisor. Additionally, employers (or their representatives) may not ask health care providers for other information beyond that which is required by the certification form.
  2. HIPAA Authorization (§ 825.306(e)). An employer may not require an employee to provide a Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) authorization for disclosure of medical records to a health care provider; however, an employee may lose FMLA protection if the certification is (i) not timely, or (ii) not submitted because the health care provider would not complete the certification, or provide clarification, due to lack of patient consent.  

B. Fitness-for-Duty Certification (§ 825.312). An employer may require that a fitness for duty certification specifically address the employee’s ability to perform the essential function of the employee’s job. An employer also may require a fitness for duty certification before an employee may return to work when the employee takes intermittent leave if there are reasonable job safety concerns. An employer must provide an employee with 15 days to submit a fitness-for-duty certification. C. Recertification (§ 825.308). The new Regulations restructure and clarify the regulatory requirements for recertification. Under the new rules, an employer may generally request recertification no more than once every 30 days. When the minimum duration of the condition is indicated from the outset to be more than 30 days, the employer must wait until that minimum duration expires before requesting recertification. Neither of the above limits apply, however, if (i) the employee requests an extension of leave, (ii) the circumstances described by the certification have changed, or (iii) the employer receives information casting doubt on the stated reason for absence or the continuing validity of the certification.  

IV. Calculation of Leave

A. Holidays (§ 825.200(h)). If an employee is on FMLA leave for an entire week in which an employer-recognized holiday falls, the employer may count the holiday as FMLA leave time too. Otherwise, a holiday does not count as FMLA leave.  

B. Leave Increments (§ 825.205). The increment of time used to track FMLA leave may not be greater than (i) one hour, or (ii) the shortest increment the employer uses to track other forms of leave (whichever is shorter). Regardless of the increment, an employee may never be charged leave for time when the employee is working or for more time than the amount of actual FMLA leave taken. For example, if an employer generally tracks leave in increments of one hour and the employee needs 30 minutes of FMLA leave at the end of the day, the employer may charge for 30 minutes of FMLA leave, but not one hour.  

C. Light Duty (§ 825.220(d)). The time an employee spends performing “light duty” work does not count against an employee’s FMLA leave entitlement. The employee’s right to restoration is held in abeyance during the period of light duty. If an employee is voluntarily performing a light-duty assignment, the employee is not on FMLA leave.  

V. Substitution of Paid Leave (§ 825.207). Under the new Regulations, employees may take (or employers may require employees to take) any accrued paid vacation, personal, family or “paid time off” concurrently with FMLA leave. Under the new Regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave (vacation, personal or generic “paid time off”) and an employee using any type of leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy that apply to all employees taking that type of leave.  

VI. Attendance Awards (§ 825.215(c)). Employers may deny a “perfect attendance” award to an employee who does not have perfect attendance because of FMLA leave as long as it treats employees taking leave for non-FMLA reasons identically.

VII. Waiver of Rights (§ 825.220(d)). Employees may retroactively waive their FMLA rights by voluntarily settling or releasing their FMLA claims without approval from a court or the DOL. Any prospective waiver of FMLA rights, on the other hand, is prohibited and unenforceable.  

VIII. Eligibility for FMLA (§ 825.110). Under the 12-month service requirement for FMLA leave eligibility, an employer need not consider employment periods prior to a break of seven years or more unless a break in service was due to National Guard or Reserve military service, or if the employer and employee agreed to rehiring before the break. Employers are not prevented from considering employment prior to a break in service of more than seven years in determining the 12-month service requirement, as long as they do so uniformly for all employees.  

IX. Military Family Leave

A. Military Caregiver Leave (§ 825.127, § 825.200). Eligible employees may take FMLA leave to care for a covered service member with a serious injury or illness incurred in the line of duty for up to 26 weeks in a single 12-month period. This leave may be taken continuously, intermittently or on a reduced schedule basis, but an employee is limited to taking no more than 26 weeks of leave in each single 12-month period, even if he or she is taking leave to care for more than one covered service member or for a subsequent serious injury or illness to the same covered service member. There is no requirement of temporal proximity between the injury or illness and the leave, nor is there a requirement that the service member be receiving treatment from a department of defense facility.  

  1. Covered Service Member (§ 825.127). Covered service members include only current members of the Regular Armed Forces, National Guard or Reserve (including those on the temporary disability retired list) receiving medical treatment or oversight by a Department of Defense (“DOD”) or Veterans Affairs (“VA”) health care provider or by a DOD-authorized private healthcare provider. Former members or members on the permanent disability retired list are not considered covered service members.
  2. Certification (§ 825.310). An employer may require information from the employee, evidence of the service member’s military status and certification from the healthcare provider to certify military caregiver leave. A DOL form is available for such certification. If the DOD orders an Invitational Travel Order (ITO) or an Invitational Travel Authorization (ITA) to a member of the employee’s family due to a serious injury or illness, the ITO or ITA constitutes automatic certification of a serious injury or illness and remains in effect for the duration specified on it.  

B. Qualifying Exigency Leave (§ 825.126). If an employee’s spouse, child or parent is on active duty or is called to active duty status, that employee is eligible to take up to 12 weeks of FMLA leave for a “qualifying exigency” or a non-medical activity arising out of the fact of active duty.  

  1. Qualifying exigencies include the following events: (1) short notice deployment (seven days or less), (2) military events, (3) childcare and school activities, (4) financial or legal arrangements, (5) counseling (non-medical) for the employee, service member or service member’s child, (6) rest and recuperation leaves, (7) post-deployment activities, and (8) additional activities.
  2. Certification (§ 825.309). An employer may require both a certification that the military member is a member of the National Guard or Reserves on active duty or called to active duty (including a copy of the military member’s active duty orders), and a second certification from the employee about the nature and details of the specific exigency, the amount of leave needed and the employee’s relationship to the military member. Except in unusual circumstances, an employee must provide both certifications within 15 days. A DOL form for such certification is available.