On November 17, 2008, the United States Department of Labor (DOL) published its first-ever revisions to its rules interpreting the Family and Medical Leave Act of 1993 (FMLA). The new regulations go into effect on January 16, 2009 – unless Congress votes to disapprove the regulations – and provide needed clarity for workers and employers about their respective responsibilities, rights, and obligations under the FMLA.

The new regulations address two distinct subjects. First, they contain a number of important changes and clarifications to the original FMLA regarding such issues as the definition of “serious health condition,” use of paid leave, employee and employer notice obligations, and the medical certification and recertification process. Second, they provide clarifications and help implement the new military family leave entitlements adopted by congress in January 2008.

The final rules are available for review in their entirety at the DOL’s website: http://www.dol.gov/esa/whd/fmal/finalrule.htm . The following is a brief description of some of the most significant revisions and clarifications to the FMLA regulations.

Definition of "Serious Health Condition"

In the new regulations, the DOL essentially retained the current definition of “serious health condition,” with certain modifications. The final rule establishes that an employee can meet the definition of “serious health condition” if, in connection with a period of incapacity of more than three consecutive full calendar days, the employee or family member has: (i) two visits to a health care provider, which must occur within 30 days of the beginning of the period of incapacity, unless extenuating circumstances exist preventing a follow-up visit from occurring as planned by the health care provider; or (ii) one visit to a healthcare provider and a regimen of continuing treatment, such as a prescription. In both cases, the first (or only) in-person treatment must occur within 7 days of the first day of incapacity.

The regulations currently provide that a chronic serious health condition “[r]equires periodic visits for treatment,” yet do not define “periodic.” The DOL now defines “periodic” to mean that in order to qualify as a chronic serious health condition, the employee must visit his/her health care provider at least twice per year.

It also is notable that the DOL did not modify the types of treatments and conditions ordinarily excluded by the definition of "serious health condition" (colds, flus, etc.).

One major aid the new regulations provide to employers trying to understand the nature of an employee’s or family member’s "serious health condition" is the relaxing of the rules regarding contacting the health care provider. Previously, employers were barred from contacting an employee’s health care provider. That required the employers’ health care providers to contact the health care provider of the employee. The new regulations permit certain company officials, such as legal or human resources professionals, to contact the health care provider without employee permission. The regulations specifically forbid the employee’s direct supervisors from contacting an employee’s health care provider in order to protect the employee’s privacy.

Substitution of Paid Leave

Previously, different procedural requirements were applied to the use of vacation or personal leave than to medical or sick leave. Under the new rules, all forms of paid leave offered by the employer are treated the same, notwithstanding whether the leave substituted is vacation, sick leave, family leave or personal leave under the employer’s policy.

The DOL clarifies that the term “substitution” means that the unpaid FMLA leave and the paid leave provided by an employer run concurrently. The final regulations make clear that the terms and conditions of an employer’s paid leave policies apply and must be followed by the employee if he or she wishes to substitute any form of accrued paid leave – paid vacation, personal leave, family leave, paid time off, sick leave, etc. – for unpaid FMLA leave. Thus, where an employer’s paid leave policy requires the use of such leave in an increment of time longer than the length of FMLA leave requested by the employee, if the employee wishes to substitute paid leave for unpaid FMLA leave, the employee must take the larger increment of leave required under the employer’s paid leave policy. If this option is chosen, the entire amount of leave taken will count against the employee’s FMLA entitlement.

In order to safeguard employees, the DOL instituted a requirement that, when providing notice of eligibility for FMLA leave to an employee, an employer must make the employee aware of any additional requirements for the use of paid leave and must inform the employee that he/she remains entitled to unpaid FMLA leave even if he/she decides not to choose the employer’s paid leave options.

Medical Certification Process

Consistent with the modifications made to other FMLA notice regulations, an employer will be permitted to request a medical certification from the employee within five business days of receiving the employee notice. An employee must then submit a medical certification within 15 days of receiving this request for both foreseeable and unforeseeable leave. If the employer believes that the employee’s certification is considered incomplete or insufficient, the employer must then identify for the employee in writing the precise information believed to be lacking and give the employee seven calendar days to provide the additional information. In instances when the employee never submits a certifica-tion, an employer may deny FMLA leave, as under existing regulations. The new DOL regulations also added a provision allowing for annual medical certifications in those circumstances where the employee’s serious medical condition ex-tends beyond one year.

Furthermore, under the original DOL regulations, a recertification request could be made by employers no more often than once every 30 days in conjunction with an FMLA absence, unless a minimum duration of inability to attend work had been set forth in the certification, in which case recertification generally could not be required until the specified duration had lapsed. If the medical certification indicated that the minimum duration of the condition was more than 30 days, the employer was forced to wait for that minimum duration to expire before requesting recertification.

The DOL regulations now permit employers to obtain recertification every six months in circumstances where the minimum duration of the condition exceeds 30 days, and may be requested in less than 30 days if any of the following occur: (i) the employee requests an extension of leave; (ii) the circumstances of the employee’s leave change significantly based on the duration or frequency of the absence or the nature or severity of the illness; or (iii) if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

Fitness for Duty Certifications

Pursuant to the new regulations, rather than merely requiring that a fitness-for-duty certification be only a “simple statement,” the employee now must obtain a certification from his/her health care provider that he/she is able to resume work and the employer can request information that specifically addresses the employee’s ability to perform the essential functions of his/her job. The employer must provide the employee with a list of the essential job functions at the same time it provides notice of this requirement. In addition, where reasonable job safety concerns exist, the employer may require a fitness-for-duty certification before the employee may return to work when the employee takes intermittent leave.

Employer Notice Requirements

The new regulations consolidate and provide additional guidance regarding the notices that employers are required to give to employees taking FMLA leave, including a general notice regarding FMLA rights, an eligibility notice, a notice of rights and responsibilities and a designation notice. The time period afforded to employers for providing various notices to employees, including notice regarding whether the requested leave has been designated as FMLA qualifying, has been extended from two to five days under the new regulations.

The new regulations also remove certain provisions that outlined categorical penalties to employers for failure to give the required notices, substituting a standard that allows employers to retroactively designate leave as FMLA qualifying and imposes liability only when the failure to follow the notification rules causes individualized actual harm to an employee.

Military Family Leave Entitlements

Another significant change to the FMLA regulations is evidenced by the implementation of the National Defense Authorization Act (NDAA), enacted January 28, 2008. That law expanded coverage of the FMLA to individuals providing assistance to members of the military and particularly to wounded veterans. As mentioned in our March 2008 Client Advisory, the first provision of the NDAA, which took effect January 28, 2008, provided up to 26 weeks of protected unpaid leave in a single 12-month period to military caregivers, including the spouse, child, parent, or next-of-kin of a covered servicemember with a serious injury or illness incurred during active duty. The second provision, which becomes effective on January 16, 2009, permits eligible employees to take up to 12 weeks of unpaid leave for “qualifying exigencies” to help manage the affairs of a solider or the soldier’s family before, during and after deployment. Qualifying exigencies include the following: short-notice deployment; military events; child care and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and any additional activities negotiated between employers and employees. Unlike Servicemember Family Leave, however, this leave is not available to next-of-kin. The new regulations contain sections that address the interpretation and implementation of both of the recently enacted NDAA leave entitlements, including eligibility and certification requirements.

Updating Policies and Handbook

It is advisable for employers to update their FMLA policies, including employee handbooks and notice forms, before January 16, 2009, when the new regulations take effect. Employers may also wish to update their handbooks to reflect the changes made by the Americans with Disabilities Amendments Act (ADAAA), discussed in our Fall 2008 Client Bulletin, that go into effect on January 1, 2009. EAPD lawyers are available to assist employers to ensure that they are in compliance with the new FMLA and ADAAA regulations.