January 07, 2009

New Regulations Issued for Family Medical Leave Act

By Elizabeth A. Schleuning

Sharon Rye

Among other things, the new regulations are designed to make administration of FMLA leave more efficient. To accomplish this, greater communication between employers and employees is required: employers must provide more information and notices, while employees must communicate their need for leave and supply adequate medical certification. Additionally, the regulations incorporate new leave rights for the family members serving in the armed services.

FMLA applies to all private employers of 50 or more employees each working day for 20 or more full (not necessarily consecutive) calendar workweeks in the current or preceding calendar year. It requires covered employers to allow eligible employees to take up to 12 weeks of unpaid leave for the birth or adoption of a child, to care for a child, parent, or spouse who suffers from a "serious health condition," if the employee's own serious health condition makes them unable to perform one or more essential functions of the job, or for certain qualifying exigencies.

The new regulations are expansive and contain numerous changes. They will go into effect on January 16, 2009, so employers are advised to start planning for implementation now. Some of the key changes included in the new FMLA regulations are summarized below:

1. Definitions of Serious Health Conditions

a. FMLA contains six definitions of what may qualify as a "serious health condition" under the statute. The new regulations provide more clarification on three of these definitions:

i. A serious health condition involving more than three consecutive, full calendar days of incapacity plus "two visits to a health care provider": Both visits to the health care provider must now occur within 30 days of the original incapacity, and the first visit must occur within seven days of the original incapacity.

ii. A serious health condition involving more than three consecutive, full calendar days of incapacity plus a regiment of continuing treatment: the first visit to the health care provider must take place within seven days of the first day of incapacity.

iii. Chronic conditions: the new regulations specify that employees must now certify that they visited a doctor at least twice a year for the condition in order for it to be considered chronic.

2. Increased Notice Requirements for Employers

a. General Notice: Employers must provide all employees with a general notice of FMLA rights. A copy of this notice (WH Publication 1420) may be obtained here.

i. If the employer has a handbook, the notice must be included in it.

ii. If the employer does not have a handbook, it must provide this notice to employees when they are hired.

iii. This notice may be provided electronically, but paper copies should also be posted if some employees do not have access to a computer.

b. Employers must also provide the following three notices when an employee requests FMLA leave:

i. Eligibility Notice (Form WH-381): When an employee requests FMLA leave, the employer must respond with an eligibility notice within five business days. Under the current regulations, employers only have two days to respond.

ii. Rights and Responsibilities Notice (Form WH-381): At the same time that the employer provides the Eligibility Notice, it must provide the employee with a notice of his or her rights and responsibilities under FMLA. The Department of Labor has combined the Eligibility Notice and the Rights and Responsibilities Notices onto the same form.

iii. Designation Notice (Form WH-382): Once the employer has determined that the employee's leave qualifies as FMLA leave, it must notify the employee within five business days.

3. Increased Employee Responsibilities

a. Employees still have to give 30 days' notice before taking FMLA leave. If they fail to do so, under the new regulations they must explain why.

b. Employees who take unforeseen FMLA leave must follow the employer's standard notification procedures, such as calling in when they will be absent from work. Previously, they had two days to provide notice of their absence.

c. Employers may require employees who are at work to provide a new medical certification every twelve months for conditions that last longer than a year. If the employee is absent from work, employers may require them to provide new medical certification every six months for ongoing conditions.

d. Employees must fully explain the reason for the leave so that the employer may determine FMLA eligibility. If an employee simply calls in sick, the employer may deny FMLA leave.

4. Military Family Leave

a. The new regulations contain more information about the implementation of the 26 weeks of unpaid FMLA leave for relatives caring for seriously ill or injured service members. Eligible relatives now include "next-of-kin," not just parents, children, and spouses. This allows service members to designate relatives other than spouses, parents, or children as "next-of-kin" for purposes of caregiver leave. The certification form (Form WH-385) for caregiver leave is available here.

b. This caregiver leave may be taken once per injury, but may be taken by more than one family member. The leave is only available while the service member is in the military, and can be taken over a 12-month period (with the clock starting on the first day of leave).

c. Relatives of service members called to active duty may take up to 12 weeks of unpaid leave for qualifying "exigencies." There are eight qualifying exigencies: (1) short-notice deployment, (2) military events, (3) child-care activities, (4) making financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities. The regulations contain examples of qualifying exigencies. The certification form (Form WH-384) for qualifying exigencies is available here.

d. Employees are not required to notify their employer when they first become aware of a covered relative's call to active duty. Instead, they must notify the employer when it becomes foreseeable that they will take leave as a result.

5. Medical Certification

a. Under the current regulations, an employer must utilize its own health care provider to make contact with the employee's health care provider. Under the new regulations though, certain company professionals, such as human resources and legal professionals, may directly contact the health providers in the medical certification process. However, an employee's direct supervisor may not obtain the employee's medical information when FMLA certification is needed.

b. If an employer believes that an employee's medical certification is incomplete or insufficient, it must notify the employee in writing and describe the information that is missing, and give the employee seven calendar days to fix the problem.

c. There are separate forms for medical certification of an employee's serious health condition, and for medical certification of a serious health condition of an employee's family member. The employee form (WH-380-E) is available here; the family member form (WH-380-F) is available here.

6. Substituting Paid Leave

a. Under the new regulations, all forms of employer-provided paid leave, whether it is vacation, sick leave, or any other kind of personal leave, will be treated the same.

b. Employees may still substitute employer-provided paid leave for unpaid FMLA leave. The employer's leave policies will still apply though: for example, if the employer requires that sick leave must be taken in full day increments, the employee cannot substitute FMLA leave with a half day of paid leave.

c. If an employee substitutes any form of paid leave for FMLA leave, they must still provide medical certification of a serious health conditions. This is different from the current rule, which allows the employee to comply with less stringent medical certification standards of the employer's sick leave policy.

7. Returning From Leave

a. Employers may now require fitness-for-duty tests for employees returning from FMLA leave if doing the job raises a significant risk of harm to themselves or others. The employer must advise the employee of this requirement in the Designation Notice.

b. If an employee returning from FMLA leave is placed on light duty, this time does not count against the employee's entitlement to FMLA leave.

8. What Employers Should Do Now

a. Revise handbooks to reflect changes to FMLA and include a general statement the FMLA policy. If the employer does not have a handbook, it should provide a general FMLA notice to all employees when they are hired.

b. Ensure that a general FMLA notice is provided to all employees in the language in which they are literate.

c. Post the General Notice of Employee Rights and Responsibilities (WH Publication 1420) in a conspicuous location, even if no employees are eligible for FMLA leave.

d. Clarify that employees who take FMLA leave without providing 30 days' notice must still follow the employer's call-in policies.

e. Update paperwork to include the required Eligibility, Rights and Responsibilities, and Designation Notices, and ensure that the proper notices are provided to employees who request FMLA leave.

9. Forms

a. In the appendix to the Final Rule, the Department of Labor has included forms that employers can use to comply with the new FMLA regulations. Employers may also access these forms by clicking on the links below:

i. Certification of Health Care Provider for Employee's Serious Health Condition (Form WH-380-E)

ii. Certification of Health Care Provider for Family Member's Serious Health Condition (Form WH-380-F)

iii. General Notice of Employee Rights and Responsibilities Under the Family and Medical Leave Act (WH Publication 1420)

iv. Notice of Eligibility and Rights & Responsibilities (Form WH-381)

v. Designation Notice (Form WH-382)

vi. Certification of Qualifying Exigency for Military Family Leave (Form WH-384)

vii. Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (Form WH-385)