On January 28, 2008, President Bush signed the National Defense Authorization Act for FY 2007, which amends FMLA to provide for a “spouse, son, daughter, parent, or next of kin” to take up to twenty-six workweeks of unpaid leave to care for a member of the armed forces (including the National Guard or Reserves) with a serious injury or illness. The law entered into effect on the date of signing. Employers are expected to act in good faith in providing leave while the DOL prepares regulations implementing this change. Dorsey attorneys Carllene Placide and Stephanie Strike analyze the individual provisions of this amendment in "FMLA Amendments Grant Additional Leave to Employees with a Close Family Member in the Armed Forces."
Highlights of the Proposed FMLA Regulations
The DOL has proposed the following changes and/or clarifications to a number of administrative requirements under the FMLA. The proposed changes will be open for a period of public comment before the DOL takes any further action. Employers, who consistently rank FMLA administration as their biggest HR challenge and may have hoped to see more significant changes – such as requiring intermittent leave to be taken in larger time increments or tightening the definition of a serious health condition – are likely to be underwhelmed. The DOL is accepting comments on the proposed changes until April 11, 2008.
Employees who use intermittent leave would have to make a “reasonable effort” rather than just an “attempt” to schedule the leave so that it is not unduly disruptive to the employer. The proposed regulations, however, would continue to allow employees to take intermittent leave for the shortest period of time that the payroll system tracks to account for absences or other forms of leave.
Under the proposed regulations an employer would be required to give an employee an opportunity to provide additional information when an initial certification is either “incomplete” or “inconsistent.” An incomplete certification is a certification received by an employer where one or more of the applicable entries have not been completed. An insufficient certification is one that is non-responsive or contains vague or ambiguous entries
The new regulations would require that an employer, upon receiving an incomplete or insufficient certification, provide the employee seven calendar days to submit a sufficient certification. The employer must state in writing the additional information it requires. Furthermore, where the employee exercises good faith efforts to obtain the additional information but notifies the employer within the seven calendar days that he or she is unable to procure the necessary information, the employer must provide additional time. If the employee resubmits the certification without curing the deficiencies, then the employer may deny the FMLA leave
The DOL proposes that a certification never submitted to the employer constitutes a failure to provide certification. It is neither incomplete nor insufficient and therefore does not qualify for the reasonable opportunity to cure the deficiencies
The proposed regulations also contain revisions to the medical certification form and guidance as to what constitutes sufficient medical facts. The regulations will allow medical facts (such as symptoms, hospitalization, doctors visits, whether medication has been prescribed, and referrals for continuing treatment) as well as a diagnosis to be included on the form. Yet, the regulations also make clear that a diagnosis is not required. The form will also be updated to require certification by a health care provider that intermittent or reduced leave are medically necessary
The regulations will also distinguish authentication from clarification of the medical certification form. Since authentication involves only verification and not communications regarding the substance of the medical information, authentication will no longer require employee consent
The proposed regulations would also delete the requirement that paid leave substitutions follow any less stringent medical certification standards of the employer’s paid leave program
With respect to recertifications, the proposed regulations allow an employer to deny FMLA coverage if the employee does not provide the recertification in a timely manner, which is to be within fifteen days of the request or as soon as practicable. Also, an employer may request a recertification every six months where the health care provider indicated on the initial certification that the condition would last an extended period of time, which includes “indefinite”, “unknown” or “lifetime” durational indications.
Fitness for Duty Certifications
The regulations proposed by the Department of Labor modify the fitness-for-duty certification requirements, but not the basic procedures. The “simple statement” that an employee is able to return to work would now require certification that the employee is able to resume work. The employer may include a list of essential job duties and require the certification to indicate that the employee is able to perform those functions. However, the employer must provide the list of job duties with the eligibility notice.
Additionally, the DOL proposes that an employer may require a fitness-for duty certification every thirty days for employees who used intermittent leave during that period.
Waiver of Rights Under FMLA
The proposed regulations clarify that the restriction on the ability of an employee to waive his/her rights under the FMLA applies only to the waiver of prospective rights and not to the settlement of past claims. If implemented, this would resolve a potentially significant question under the current regulations whether an employee can effectively release FMLA claims, for example as part of a severance agreement, without explicit DOL or court approval.
Bonuses or Awards
The proposed regulations allow an employer to disqualify an employee from a bonus or award where the employee fails to achieve the goal underlying the award due to an FMLA absence. Specifically, the proposed regulations state that “if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent non-FMLA leave status.” This change would resolve the frequently hard to administer distinction in the current regulaitons between occurrence-based bonuses (such as productivity bonuses) and absence-of-occurrence bonuses (such as perfect attendance bonuses).
12 Month/1250 Hour Eligibility Requirement
The proposed regulations clarify that the twelve months of employment required to qualify for FMLA leave need not be consecutive. Thus, any break in service does not reset the time period when determining whether an employee has met the twelve month requirement. However, where an employee maintains a continuous break in service for five years or more, an employer may, but need not count periods of employment prior to that break in service when determining employee eligibility. A couple of notable exceptions exist. Such prior employment does count regardless of the length of a break in service, where the break in service was due to the employee’s fulfillment of military obligations or a period of approved absence or unpaid leave where a written agreement or collective bargaining agreement exists demonstrating the intent to rehire.
The DOL proposal clarifies the statutory requirement that employee eligibility determinations be made “as of the date leave commences.” If an employee reaches the twelve-month eligibility requirement while on leave, the leave period prior to meeting the requirement is non-FMLA leave, and the leave period after the requirement is fulfilled is FMLA leave. The department clarified that periods of leave do not count towards the 1,250 hour requirement, but they do count towards the twelve months of employment requirement.
Substitution/Exhaustion of Paid Leave
The proposed regulations clarify that unless waived by the employer, the terms of an employer’s paid leave policy apply and that employees must comply with the policies in order to substitute accrued paid leave. Thus, an employer may, but need not, allow an employee to substitute paid leave for unpaid FMLA leave where the employee’s leave does not qualify under the paid leave policy. For example an employer is not required to substitute paid sick leave where a parent using FMLA leave to care for a child does not comply with the employer’s paid sick leave policy which applies only to the employee’s own illness. Employers seem to be evenly divided on whether requiring the use of paid leave or having the leave be unpaid is the more effective deterrent against potential abuse of FMLA leave by employees. This change, however, does give those employers who would opt to have FMLA leave typically remain unpaid greater control over the issue.
Light Duty Assignments
The proposed regulations prohibit an employer from reducing an employee’s FMLA leave by the period spent performing light duty work. Also, an employer may not require an employee to accept light duty work instead of FMLA leave. Of course, refusal to accept light duty may separately impact the employee’s eligibility to receive workers comp benefits.
Failure to Designate FMLA Leave
The proposed regulations retain the requirement that employers promptly designate and notify employees of FMLA qualifying leave. The proposed regulations require timely designation and define timely to mean within five business days absent extenuating circumstances. The proposal accounts for a Supreme Court decision which determined that the DOL cannot prohibit retroactive designation of FMLA leave due to employer failure to properly designate the leave as FMLA leave. So the practical effect of this change is uncertain, but employers would be well served to continue to designate leave as FMLA-qualifying as soon as practicable under the circumstances.
The department clarifies that where an employee takes less than a full week of FMLA leave during a week containing a holiday, employers may not count the holiday against the FMLA leave entitlement if the employee would not have been required to work that day. However, if an employee takes a full week of leave, then the holiday will count against the employee’s FMLA leave entitlement.
Approved Health Care Providers
Physician assistants are to be added to the list of recognized health care providers and will no longer be required to operate without supervision.
Serious Health Condition
The Department of Labor declined to modify the definition of a “serious health condition.” While many expected significant changes in this area, such as a stricter definition of ‘seriousness’ and modifications to the objective test, for example increasing the days of incapacity or measuring by work days rather than calendar days, the proposed regulations essentially retain the current definition under the objective test, which requires more than three consecutive calendar days of incapacity plus treatment.