On November 17, 2008, the Department of Labor (“DOL”) issued final regulations interpreting the Family and Medical Leave Act (“Regulations”). See The Family and Medical Leave Act of 1993; Final Regulations, 73 Fed. Reg. 67,934 (Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825). These final Regulations go into effect January 16, 2009. The Regulations make some significant changes to the interpretation of the statute; minor changes and clarifying changes are made in other parts. In addition, the Regulations provide significant guidance on the interpretation of the National Defense Authorization Act, signed by the President in January 2008. That law expanded the coverage of FMLA to provide up to 26 weeks of leave for employees to provide care to covered service members with a serious injury or illness and up to 12 weeks of leave for employees because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member on active duty or has been notified of an impending call or order to active duty. Below are some of the highlights from the new Regulations.1

The Regulations provide broad entitlements to military caregiver leave.

Military caregiver leave has been available to eligible employees since January 2008, but the Regulations provide additional guidance on the provision of leave under this category. Eligible employees are entitled to FMLA leave to care for a “covered service member” with a serious illness or injury. See 29 C.F.R. §§ 825.112(a)(6) & 825.127(a). An employee who is the “spouse, son, daughter, parent, or next of kin” of the covered service member may be eligible for such leave. See 29 C.F.R. § 825.127(b).

Several provisions relating to FMLA leave for individuals in this category differ from FMLA leave taken in other situations. First, employees may be entitled to up to 26 weeks of leave to care for a covered service member, rather than just 12 weeks, in a “single 12-month period.” See 29 C.F.R. § 825.127(c). Second, the 12-month period in which leave in this category can be taken begins “on the first day the eligible employees takes FMLA leave to care for a covered service member and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons.” See 29 C.F.R. § 825.127(c). Thus, employers normally using the calendar-year, a fiscal-year, or a rolling year to track FMLA leave will have to use a different method for leave taken under this category. Third, eligible employees may be entitled to take up to 26 weeks of leave to care for one service member and one injury; additional weeks of leave (in a new “single 12 month period”) can only be taken to care for a different illness or injury of the service member or to care for a different service member. See 29 C.F.R. § 825.127(c)(2). Leave may be taken intermittently where medically necessary. See 29 C.F.R. § 825.202(b).

Employers are entitled to specific information from employees to verify the need for FMLA leave under this provision, and the DOL has developed a certification form that employers may use and that complies with the Regulations. See Form WH-385; 29 C.F.R. §§ 825.310 & 825.122(j).

The Regulations provide guidance on the breadth of a “qualifying exigency.”

Eligible employees are entitled to up to 12 weeks of leave because of “any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.” See 29 C.F.R. § 825.112(a)(5). Leave may be taken intermittently. See 29 C.F.R. § 825.202(d).

What constitutes a “qualifying exigency” has now been delineated by the Regulations. A qualifying exigency may include any of the following: (1) a “short-notice” deployment calling a covered military member to service within seven or fewer days notice; (2) attendance at military events and related activities (e.g., official ceremony, program, informational briefings); (3) arrangement of childcare and school activities; (4) making of financial or legal arrangements; (5) attendance at counseling; (6) time to spend with person on short-term, temporary rest and recuperation leave (up to five days for each instance of rest and recuperation); (7) post-deployment activities for up to 90 days after the termination of active duty service or to address issues that arise from the death of the service member; and (8) additional activities. The activities that trigger leave entitlement under this provision must be related to, arise out of, or be necessitated by the active duty or call to active duty. See 29 C.F.R. § 825.126(a).

Employers are entitled to specific information from employees to verify the need for FMLA leave under this provision, and the DOL has developed a certification form that employers may use and that complies with the Regulations. See Form WH-384; 29 C.F.R. § 825.309.

The Regulations clarify eligibility requirements.

The Regulations clarify that the employed-for-12-months eligibility requirement does not require that the 12 months of employment be continuous. In fact, the Regulations now state that in determining eligibility of an employee, an employer must consider previous employment with the company, including any employment up to a seven-year break. There are exceptions based on particular collective bargaining agreement provisions and based on breaks in service due to military service. See 29 C.F.R. § 825.110(b).

The Regulations incorporate USERRA’s requirement that any hours that would have been worked for the employer but for the employee’s military service be counted toward the 1,250-hours-worked eligibility requirement. See 29 C.F.R. §§ 825.110 & 825.800.

The Regulations also clarify that an employee may attain FMLA eligibility status while on a leave of absence (if, for example, an employer allows a leave of absence to begin prior to FMLA eligibility). See 29 C.F.R. § 825.110(d); 73 Fed. Reg. at 67,942.

The Regulations modify processes relating to medical certification.

Employers that require eligible employees to submit medical certification to confirm entitlement to FMLA leave must notify the leave-requesting employee of such requirement within five business days of receiving notice of the request for leave or within five days of the leave having begun. See 29 C.F.R. § 825.305(b). The Regulations do not significantly alter the type of information employers may request, but the DOL has modified the regulatory language and developed two new prototype medical certification forms intended to better focus the communication of appropriate information (one form for an employee requesting leave for his or her own serious health condition; another form for an employee caring for a family member). See Employee Medical Certification Form; Family Member Medical Certification Form; 29 C.F.R. §§ 825.305 & 825.306. For example, the new certification provisions allow employers to seek “information sufficient to establish” that the employee cannot perform the essential functions of his or her position and, where applicable, the medical necessity of intermittent leave. See 29 C.F.R. § 825.306(a).

The Regulations modify the process for obtaining information in addition to that initially contained on the returned medical certification. If a certification is “incomplete” (applicable entries left blank) or “insufficient” (vague, ambiguous, or non-responsive), the employer must notify the employee of such deficiencies and explain, in writing, what additional information is necessary. The employee must be provided with at least seven calendar days to cure the deficiencies. See 29 C.F.R. § 825.305(c). FMLA leave may be denied if the employer does not provide an adequate certification after being given an opportunity to cure it. See 29 C.F.R. §§ 825.305(d) & 825.313.

After an employee is given an opportunity to cure the deficiencies of incompleteness and insufficiency, an employer may contact the employee’s health care provider directly to receive clarification or authentication of the certification. As before, an employer can use a health care provider of its choice to make this contact; however, the Regulations provide that a human resources professional, a leave administrator, or a management official also are permitted to make such a contact, so long as the employee’s direct supervisor does not, and provided certain other procedural requirements are met (e.g., compliance with HIPAA). See 29 C.F.R. § 825.307(a).

Second and third medical opinions still are permissible. See 29 C.F.R. § 825.307(b)-(d). Some changes have been made to the recertification provisions. See 29 C.F.R. § 825.308.

The Regulations allow employers to obtain additional fitness-for-duty information.

The Regulations now allow employers to require that fitness-for-duty certifications address an employee’s ability to perform the essential functions of his or her position. See 29 C.F.R. § 825.312(b). Employers that require such a fitness-for-duty certificate must inform the employee, no later than when the employer first notifies the employee that his or her leave is designated as FMLA leave, of the essential functions of the position that will have to be addressed in the certification. An employer may require a fitness-for-duty certification no more often than every 30 days for employees taking leave on an intermittent or reduced leave schedule and only if there are reasonable safety concerns. See 29 C.F.R. § 825.312(f).

The Regulations impose a higher standard of effort on employees seeking intermittent leave.

Employees who use FMLA leave on an intermittent or reduced hours schedule basis for planned medical treatment now must make a “reasonable effort” – a change from an “attempt” – to schedule the leave so that it is not unduly disruptive to the employer. See 29 C.F.R. § 825.203.

The Regulations continue to provide that employees who require foreseeable leave for planned medical treatment may be temporarily reassigned to a position that better accommodates such a schedule. See 29 C.F.R. § 825.204(a). The DOL’s comments emphasize that reassignment is only permissible for employees who take foreseeable leave for planned medical treatment or in cases where the employer and employee agree to intermittent leave for the birth of a child or for adoption or foster care placement. See 73 Fed. Reg. at 67,975; 29 C.F.R. §§ 825.204(a) & 825.302(e). The DOL declined to make such a transfer permissible in cases where an employee takes unforeseeable intermittent leave. See 73 Fed. Reg. at 67,975.

The Regulations clarify the interaction between light duty and use of FMLA leave.

The Regulations set forth specific guidance on the interaction between a light duty assignment and FMLA rights. An employer does not have to offer, and an employee does not have to accept, a light duty assignment in place of taking FMLA leave. However, if an employee does take a light duty assignment, the time spent working the light duty assignment may not be counted as FMLA leave. At the conclusion of the light duty assignment, or at the conclusion of the applicable 12-month FMLA year, the employee remains entitled to FMLA leave (if not exhausted) and/or to his or her statutory right to job restoration (unless the light duty assignment is taken after the employee’s exhaustion of FMLA leave and inability to return to his or her original position). See 29 C.F.R. § 825.220(d); 73 Fed. Reg. at 67,989.

Recommendations

  •  Review policies for compliance with the mandates of the Regulations. Review Regulations while administering the FMLA. Many of the Regulations’ provisions affect the actual administration of FMLA leave more than the written policies.
  • Inform supervisors and HR Managers of the expanded breadth of FMLA coverage.
  • Manage leave designations carefully, keeping in mind that the 12-month period for an employee taking leave to care for a covered service member may be different than the 12-month period used for FMLA leave taken for other reasons.
  • Consider including a list of essential functions of an employee’s position on the medical certification form and fitness-for-duty certification.
  • Remember state laws, as they may mandate different (including broader) leave entitlements.