The United States Department of Labor issued its final revised regulations to the Family and Medical Leave Act (“FMLA”), effective on January 16, 2009. These regulations:

1. Include numerous significant changes and clarifications,

2. Provide detail on the 2008 military related leave provisions, and

3. Contain seven new prototype forms and certifications.

Non-profit employers should have their FMLA policies reviewed and revised to comply with the regulations. Additionally, human resources personnel and supervisors should be trained on the regulations to avoid violating the FMLA. This bulletin highlights some of the regulations’ most important changes.

Definition of Serious Health Condition

  • Incapacity plus treatment for “serious health condition” leave now requires:
    • Two or more visits within 30 days, or
    • One visit plus a regimen of continuing treatment.
    • The first (and in some cases only) visit must occur within seven days of the first day of incapacity.

Qualifying Exigency Leave

Eligible employees may take leave due to a “qualifying exigency” when an employee’s parent, spouse, son or daughter is on, or has been notified of an impending call to, active duty in support of a contingency operation. Qualified Exigency Leave can be used for, among other things: military events, childcare or school activities, financial or legal arrangements, and counseling.

Military Service Member Leave

  • Eligible employees may take up to 26 workweeks of leave in a single 12-month period to care for a covered service member (e.g., spouse, son, daughter, parent, next of kin) who has a serious injury.
  • “Serious Injury” means injury or illness in the line of duty or active duty rendering the severance member medically unfit to perform his/her military duties.
  • “Single 12 month period” begins on the first day of the leave regardless of how the employer tracks leave (e.g., rolling 12 months backward, calendar, hiring anniversary).
  • “Next of Kin” are blood relatives listed in a priority ordering; however, the service member may designate a different priority in writing.
  • Eligible employees may be able to take more than one 26 workweek leave for different injury or different service member if he/ she meets the other eligibility requirements (e.g., different 12-month period).

Perfect Attendance Bonuses

Bonus awards based on achievement of a specific goal (e.g., hours worked, products sold, perfect attendance) may be denied someone who failed to meet the goal even if they had taken FMLA leave—as long as employees taking other leave are treated similarly.

Holidays

  • Employer can count a full week of leave as FMLA leave even if it includes a holiday.
  • Employer can only count the holiday that falls during a partial week of FMLA leave if the employee was scheduled to work that holiday.

Employer Notices and Certification Forms

  • An employer must give four FMLA notices to an employee:
    • General Noticeto new employees
      • It can be included in the employee handbook or new hire packet.
    • Eligibility Noticewhen an employee requests FMLA leave
      • Within five business days, employer must notify employee of eligibility status. If ineligible, employer must provide at least one reason why (e.g., not have 12 months of employment).
    • Rights and Responsibilities Noticegiven along with Eligibility Notice
      • It must identified in writing, among other things: employer’s expectations and employee’s obligations, consequences of employee not meeting his/her obligations, applicable 12-month period, right to substitute paid leave, requirements for maintaining health benefits, and key employee status.
    • Designation Noticegiven after receiving required certification
      • It must be given within 5 business days in writing.
      • Retroactive designation acceptable if failure to meet original deadline does not cause harm to the employee.
      • It can include requirement employee substitute accrued paid leave.
      • It can include notice of fitness for duty certification at end of the leave.
      • If amount of leave is unknown, it can designate in 30-day increments and require employee to request leave after each such increment.

Certification

  • When the need for leave lasts beyond a single leave year (e.g., intermittent leave due to epilepsy), an employer may require the employee to provide a new medical certification each subsequent leave year.
  • Employer can request fitness for duty certification that employee can perform essential functions of the job, but if employer does so, it must provide list of essential functions to certifier.
  • Leave based on “incomplete” and “insufficient” certification can be denied—however, the employer must (a) provide the employee with seven calendar days to cure any certification deficiency, (or longer if not practicable to meet deadline despite the employee’s good faith efforts); and (b) identify the deficiencies in writing; and the employee must fail to cure the deficiencies.
  • Employers can now contact the healthcare provider directly for clarification and authentication through its: (a) human resource professional; (b) leave administrator; or (c) management official (but not the employee’s immediate supervisor).
  • Please keep in mind that the changes identified above are just a small sample of the numerous changes and clarifications addressed by the new regulations. Also, military related leave requires significant analysis and discussion to understand how such leave fits within the FMLA framework.