Beyond the usual flurry of paperwork that comes with ushering in the New Year, employers have an added burden this year: becoming familiar and compliant with the Department of Labor’s (DOL) new regulations amending the Family Medical Leave Act (FMLA).

The new regulations, published on November 17, 2008, go into effect on January 16, 2009. With them come changes in employers’ responsibilities and employees’ rights. Certain of the new regulations impose duties on employers that must be addressed even before an employee requests FMLA leave. As such, it is critical that employers become familiar with the new regulations immediately, and update their policies and procedures as necessary to remain compliant.

Amendment and Clarification of Existing FMLA Provisions

The new DOL regulations are the first major revisions to the 15-year-old FMLA. Therefore, many of the “changes” in the regulations are simply codifications of prior DOL opinions and court decisions that have already been recognized as controlling law, and should not significantly impact how employers handle FMLA leave, if at all. Other amendments, however, represent significant changes and will no doubt require updates to employers’ policies and/or procedures. The following are some of the more noteworthy changes and clarifications:

  • The new regulations clarify what constitutes a “serious health condition,” a “regimen of continuing treatment,” and a “chronic condition” by requiring that visits to a health care provider occur within specified time periods. In addition, the definition of a “health care provider” has been expanded to include physician’s assistants.
  • An employer may now require that an employee reporting an FMLA-qualifying absence follow the employer’s customary call-in procedures for reporting absences, absent unusual circumstances.
  • Employers may now deny “perfect attendance” awards to employees whose attendance is not perfect as a result of FMLA leave, so long as the employer treats non-FMLA leaves in the same manner.
  • Employers’ notice obligations have been consolidated into a single section of the regulations. Four types of notices are required: (1) general notice (regarding the Act’s provisions and procedures for filing complaints); (2) eligibility notice (explaining whether the employee is eligible for FMLA leave and, if not, why not); (3) rights and responsibilities notice (explaining the employee’s obligations and the consequences for failure to fulfill them); and (4) designation notice (including, among other things, details regarding substitution of unpaid leave and fitness-for-duty certification requirements). Form notices that satisfy the new requirements are contained in the Appendices to the regulations. Note that in some situations these notices must be translated for non-English speaking employees.
  • The time to provide the eligibility, rights and responsibility, and designation notices has been extended to five business days (previously two business days) of making the determination whether leave has or has not been designated as FMLA leave.
  • In addition to posting an FMLA poster, employers must provide the general FMLA notice to all employees either in an employee handbook or by distributing a copy to all new hires. The general notice may now be posted electronically if the electronic notice otherwise meets the requirements of the regulations and is accessible to all employees and viewable by all applicants.
  • Light duty work assignments do not count against an employee’s 12-week leave entitlement. An employee’s right to restoration is held in abeyance while he or she is performing light duty, or until the applicable 12-month FMLA leave year ends.
  • Employers may now require that a “fitness-for-duty” certification from a health care provider specifically address the employee’s ability to perform the essential functions of his or her job. If the employer has reasonable job safety concerns, it may also require a fitness-for-duty certification before the employee returns from intermittent leave.
  • Employers may now contact an employee’s health care provider directly to obtain medical certifications. However, only certain employer representatives are permitted to make direct contact, and in no case may the employee’s direct supervisor contact a health care provider.
  • The new regulations clarify the time periods for medical recertification. Employers may request a new medical certification for each leave year for a medical condition that extends beyond a single year. An employer may also require recertification as often as every 30 days, but in cases where a minimum duration of incapacity exceeding 30 days has been specified in the medical certification, the employer generally may not request recertification until the specified time period has lapsed. However, in all cases an employer may request recertification of an ongoing condition every six months. (New medical certification forms are contained in the Appendices to the regulations.)
  • If an employee substitutes accrued paid leave under an employer policy (e.g., vacation or sick days) for unpaid FMLA leave, he or she must now follow the employer’s policy for taking such leave. If the employee fails to meet the employer’s conditions for paid leave, he or she is still entitled to take unpaid FMLA leave. Elected or required paid leave runs concurrently with unpaid FLMA leave.
  • The regulations clarify how to count holidays and overtime that fall within FMLA leave, and permit each to count against the employee’s leave entitlement in certain circumstances.
  • The regulations codify the Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., and remove the “categorical penalty” for failure to appropriately designate FMLA leave, which in that case would have required the employer to provide an additional 12 weeks of FMLA leave after the 30 weeks of leave the employee had already received. The new rule removes the categorical penalty provisions and clarifies that an employer may be liable for any “individualized harm” suffered by an employee due to an employer’s failure to follow the notification requirements. This may include liability for lost compensation and benefits, other actual monetary losses, reinstatement, promotion or “any other relief tailored to the harm suffered.”
  • The regulations codify the DOL’s position that employees may settle or release FMLA claims without court or DOL approval. However, prospective waivers of FMLA rights are still prohibited.

National Defense Authorization Act - New Military Leave Regulations

In addition to amending and clarifying existing provisions of the FMLA, the new DOL regulations will implement provisions of the National Defense Authorization Act (NDAA), which President Bush signed into law in January 2008. The NDAA creates two new military family leave entitlements, which are structured somewhat differently than other FMLA leave. Some of the highlights of the NDAA regulations are:

  • Eligible employees may take up to 26 workweeks of leave in a “single 12-month period” to care for a service member who incurred a serious illness or injury while on active duty. The “single 12-month period” does not coincide with the calendar year. Instead, it begins at the commencement of the leave. Employees may be eligible to take more than one 26-week period of leave to care for more than one service member, or to care for one service member with more than one injury. These leaves may overlap, so long as the employee takes no more than 26 weeks of leave in each “single 12-month period.”
  • In this situation, the new regulations extend FMLA protection to additional family members beyond those who would otherwise be entitled to leave. Aunts, uncles, grandparents, cousins, and those designated as “next of kin” are all eligible to take FMLA leave to care for a covered service member.
  • An eligible employee whose covered family member is called to active duty in the National Guard or Reserves also may take up to 12 workweeks of leave for “qualifying exigencies.” The DOL defines a “qualifying exigency” by reference to several categories of circumstances, including short notice deployment, military events and activities, child care arrangements and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and other activities that the employer and employee agree qualify for leave.

These are only a sampling of the most significant changes and clarifications that the new regulations will make to the FMLA. To ensure your continued compliance with the FMLA and the new DOL regulations, you should contact employment counsel well in advance of January 16, 2009 to review your FMLA policies and procedures and revise them as necessary