Sixteen years after the Family and Medical Leave Act of 1993 (FMLA) was enacted, the Department of Labor (DOL) has issued new regulations that take effect on January 16, 2009. Many of the changes are technical and will have no effect on your day-to-day FMLA policy administration. Other changes, most significantly the new military family leave provisions, will require employers to modify their existing policies.

FMLA Eligibility: What Qualifies as “12 Months of Service”

To be eligible for FMLA leave, the employee must have worked at least 12 months in total and have worked at least 1,250 hours in the 12 months preceding his or her leave. The new regulations allow an employee on a non-FMLA leave who does not have 12 months of service to meet the 12-month service requirement while on leave. This is called “rolling into” FMLA leave eligibility: for example, a full-time employee who took workers’ compensation leave nine months after he was hired would qualify for FMLAprotected leave after three months of leave. And, his leave before he qualified would not be counted against his FMLA leave.

Defining 12 Workweeks of Leave

The FMLA allows eligible employees to use up to 12 “workweeks” of leave in a 12-month period. If an employee’s workweek varies from week to week, the new regulations require an employer to calculate a weekly average of hours scheduled over the prior 12- month period to determine the employee’s leave entitlement. The Final Rule also clarifies that holiday hours that occur during a full week of FMLA leave and overtime hours that an employee would have normally worked count against an employee’s annual FMLA leave entitlement.

Serious Health Condition: When Must the Employee See a Health Care Provider

An employee can qualify as having a “serious health condition” if he or she is sick for more than three calendar days and (1) visits a health care provider twice or (2) visits a health care provider once but receives a “continuing regimen of treatment” (such as a course of prescription medication) under the supervision of a health care provider.

The new regulations clarify that the first visit must occur within seven days of the individual’s first day of incapacity. Where two visits are involved, the second must occur within 30 days of the employee’s initial incapacity. Absent special circumstances, both visits must be in-person – phone calls, letters and faxes don’t work.

Serious Health Condition: What Constitutes a Chronic Condition

Individuals with “chronic conditions” also may qualify for FMLA leave. A chronic serious health condition is one that is episodic, continues over an extended period of time, and requires periodic visits to a health care provider or nurse. The previous rule did not define the frequency of such “periodic visits.” The new regulations require, among other things, at least two visits per year.

Substitution of Paid Leave

For those employers who let their employees decide whether they want to use paid leave as part of FMLA leave, the new regulations state that an employee’s ability to use paid leave can be limited by the employer’s written policies. For example, if the vacation policy requires the use of vacation days in full-day increments, an employee cannot use a half day of vacation for a doctor’s visit that qualifies under the FMLA. As a further example, if an employer’s policy limits the use of sick days to an employee’s own illness, employees could not take a sick day for FMLA newborn child leave.

Perfect Attendance and Production Bonuses

One significant change is that an employer may deny the award of perfect attendance or production bonuses based upon an FMLA absence so long as the employer treats non- FMLA absences the same way. Perfect attendance can mean just that.

Intermittent Leave

An employer can require employees to take intermittent leave in increments of no less than one hour.

Light Duty

An employee who comes back on “light duty” retains the right to be restored to his or her former position until and unless the employee’s FMLA eligibility for the 12-month period expires.

E-Notice

An employer can meet its general notice and posting requirements through online posting. Because this notice must go to all employees and applicants, most employers will continue to post an actual FMLA notice in the workplace. Employers are also required to provide all new hires with a copy of the FMLA general notice, either as part of an employee handbook or separately. This, too, can be done electronically.

Notifying and Designating FMLA Leave

Employers are required to notify an employee within five business days that he or she qualifies for FMLA leave (along with written notice of the employee’s rights and obligations, and any required medical certification). The old rule allowed only two business days. An employer also has five business days to notify the employee that his or her leave will be designated as FMLA leave. The DOL has published two new forms to satisfy these notice requirements: Form WH-381 (Eligibility Notice) and Form WH-382 (Designation Notice).

Acknowledging the U.S. Supreme Court’s decision in Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), the regulations state that failure to provide notice and designation within five days will not always be fatal. The employer will be liable for failure to provide timely designation only where the employee suffers harm or injury as a result. For example, in Ragsdale, the Court held that the employee did not suffer hardship from the employer’s failure to designate specifically the employee’s leave as FMLA leave because the employee was aware of the employer’s FMLA policy and was provided 12 weeks medical leave consistent with the statute. Under these and other circumstances, an employer can “retroactively designate” FMLA leave. The regulations state that the employer must provide written notice of its intent to retroactively designate. Also, an employee and employer can mutually agree to retroactive designation.

The DOL has increased the amount of information that must be provided to the employee when designating FMLA leave. The DOL’s new Designation Notice (Form WH-382) can be used for this purpose.

Employee Notice Obligations

If the leave was unforeseeable, the employee must request it “as soon as practicable.” In most situations, this means the same or next business day after the employee becomes aware of the need for leave. The employee no longer gets two full business days.

The employee is required to provide “specific” information concerning the need for leave sufficient to allow an employer to determine whether he or she qualifies for FMLA. Calling in “sick” does not suffice. However, as with the previous regulations, the employee is not required to use any magic language or invoke the FMLA by name. Even where the employee does not specifically ask for FMLA leave, the employer must make further inquiry if it can reasonably assume from the employee’s statements and surrounding circumstances that the leave might qualify as FMLA. Section 825.302(c). The DOL’s failure to address these “employer should have asked even if the employee didn’t tell” situations will continue to result in litigation.

Medical Certification

In one of the more helpful changes, the new regulations allow for direct communication between a company representative (but not the employee’s direct supervisor) and the employee’s doctor as long as the authorization requirement of the Health Insurance Portability and Accountability Act (HIPAA) are followed. The DOL has developed two new medical certification forms: Form WH-380E (Employee) and Form WH-380F (Family Member), that expand the information that can be requested. If the medical certification is incomplete, the new regulations require written notice as to which sections are incomplete and allow the employee seven days to obtain additional information. The old regulations were silent on this issue, as well as how often an employer could request recertification – now, every six months.

Fitness-for-Duty Certification

As before, an employer may require a return-to-work certification if required of all employees and contained in the employer’s policies. This requirement should also be contained in the Designation Notice (but alternatively the employer can inform the employee orally at the time of FMLA designation). Under the new regulations, the employer may require that the certification specifically address the employee’s ability to perform the job’s essential functions. The Designation Notice should identify this requirement and provide a list of the job’s essential functions. This brings the regulation in conformity with the Americans with Disabilities Act (ADA). The regulations don’t, however, address other apparent conflicts between the FMLA and ADA, such as where the employee requests intermittent leave (for example, one day a week) but 40 hours a week is an essential function of employee’s job. The ADA would not require that the employer accommodate the employee. The FMLA arguably requires the employer to provide time off, even if it would interfere with the employee’s ability to perform the essential job duties.

FMLA Leave for Military Families

Under the National Defense Authorization Act (NDAA), parents, spouses and children of military personnel can take FMLA leave for two additional reasons:

  1. “Any qualifying exigency” including: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) postdeployment activities; and (8) additional related activities. An employee may take qualifying exigency leave only when his or her spouse, son, daughter or parent is called into active duty, or notified of an impending call or order to active duty in support of a federal military contingency operation. An employee does not qualify for exigency leave in situations where the employee’s family member is already serving on active duty in the regular armed services.
  2. To care for a covered servicemember with a serious injury or illness (Military Caregiver Leave). In addition to immediate family, “next of kin” can also take a Military Caregiver Leave. “Next of kin” includes, in priority order: brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated another blood relative. A “covered servicemember” includes current military personnel undergoing medical treatment, recuperation or therapy in outpatient status, or on the temporary disability retired list, for a serious injury or illness incurred in the line of duty. An employee taking Military Caregiver Leave is eligible for a maximum of 26 workweeks of leave (including any combined traditional FMLA leave) on a per-injury basis during the 12 months following the start of the leave.

Release of Claims

Several court decisions have held that, like federal wage and hour claims, an employee cannot waive and release FMLA claims unless a court or the DOL expressly approves following initiation of litigation. Other court decisions have disagreed with this approach. While the new regulation purports to allow employees to knowingly and voluntarily release FMLA claims without judicial or administrative approval, it is likely to be challenged because the DOL’s regulations cannot override a court’s interpretation of the statutory language.