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Legally Speaking


Issue: June, 2009
Author: Antonio E. Bendezu

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The Fifteen-Year FMLA Facelift

On November 17, 2008, the U.S. Department of Labor (“DOL”) issued new regulations (the “Final Rule”) that expanded and clarified the provisions of the Family Medical Leave Act of 1993 (the “FMLA”), 29 U.S.C. § 2601, et seq. The Final Rule became effective on January 16, 2009, being the culmination of continuing pressure from business groups and employers, calls for public comments in 2006 and 2008, judicial interpretation, and the passage of new military family leave provisions.

The expansion of the FMLA arose from enactment of the National Defense Authorization Act for FY 2008 (“NDAA”), Public Law 110-181, on January 28, 2008. Otherwise, the clarifying provisions of the Final Rule amount to a response to the invalidation of portions of DOL regulations via the U.S. Supreme Court and lower court decisions, the DOL’s experience in enforcing and administering the FMLA since 1993, input from DOL/FMLA stakeholders, and nearly 20,000 public comments. The following outlines the most significant changes to the regulations:

Military Family Leave
Section 585(a) of the NDAA added two leave entitlements to the FMLA: Military Caregiver Leave and Qualifying Exigency Leave.

  1. Under Military Caregiver Leave (also known as Covered Servicemember Leave), eligible employees who are family members (spouse, son, daughter, parent, next of kin) of covered service members will be allowed up to 26 work weeks of unpaid leave in a single 12-month period to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty.

    a. The “single 12-month period” begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave.

    b. An eligible employee is limited to a combined total of 26 work weeks of leave for any FMLA-qualifying reason during the “single 12-month period.” In other words, only 12 of the 26 weeks may be attributable to any FMLA-qualifying reason other than to care for a covered servicemember.

  2. Qualifying Exigency Leave is meant to help the families of members of the National Guard or Reserves manage their affairs while the servicemembers are on active duty in support of a contingency operation. The standard 12 weeks of unpaid FMLA leave are now available to eligible employees with a family member (spouse, son, daughter, parent) serving in the National Guard or Reserves.

    a. The “single 12-month period” can be the 12-month period regularly established by the employer for FMLA leave.

    b. The 12 weeks can be used for “any qualifying exigency” that arises from the fact that a covered military member is on active duty, or is called to active duty, in support of a contingency operation.

    i. The Final Rule defines “qualifying exigency” by citing eight categorical examples of reasons to use FMLA leave: 1) short-notice deployment (up to seven days of leave, from the date of notification), 2) military events and related activities, 3) childcare and school activities, 4) financial and legal arrangements, 5) counseling, 6) rest and recuperation (up to five days of leave), 7) post-deployment activities, and 8) additional activities not encompassed in the other categories, but agreed to between the employer and the employee.

The employer coverage and employee eligibility provisions of the FMLA remain unchanged by the NDAA and the Final Rule. As such, the FMLA, including the military family leave entitlements, only applies to employers who employed 50 or more employees in 20 or more work weeks in the current or preceding calendar year, including joint employers and successors of covered employers. Eligible employees must a) work for a covered employer, b) have worked for the employer for at least 12 months, c) have worked at least 1,250 hours over the previous 12 months, and d) work at a location where at least 50 employees are employed by the employer within a 75-mile radius.

Response to Caselaw
In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155 (U.S. 2002), the U.S. Supreme Court invalidated the then-current regulations’ “categorical” penalty provisions, which provided that leave taken by an employee did not count against the employee’s FMLA entitlement if the employer failed to designate the leave taken as FMLA leave. The Court found the penalty provision contrary to the FMLA and beyond the authority of the Secretary of Labor. Other, similar penalty provisions in the former regulations have been invalidated by lower courts. The Final Rule eliminates these categorical penalty provisions and clarifies that, where an employee suffers individual harm due to the employer’s failure to follow the notification rules, the employer may be liable for lost compensation and benefits, other actual monetary losses, and appropriate equitable relief.

Light Duty
The Final Rule also addresses a handful of court decisions deeming “light duty” assignments as counting against the 12-week FMLA leave entitlement when such “light duty” follows a period of FMLA leave. The Final Rule clarifies that such “light duty” time does not count against an employee’s FMLA leave entitlement. However, an employee’s right to restoration of his FMLA leave entitlement is held in abeyance during the period of time he performs such “light duty,” or until the end of the applicable 12-month FMLA leave year, whichever is sooner. Additionally, an employee who is voluntarily under “light duty” restrictions cannot be considered to be on FMLA leave.

Waiver of Rights
Though it has been the DOL’s opinion that employees’ FMLA claims may be settled or released without DOL or court approval, a Fourth Circuit decision recently interpreted the DOL’s former regulations as barring both the prospective and retrospective waiver of employees’ FMLA rights. As a result, the Final Rule explicitly allows such settlements and releases without the approval of the DOL or any court. The Final Rule does still prohibit prospective waiver of FMLA rights.

“Serious Health Condition”
The FMLA requires a covered employer to grant to an eligible employee unpaid leave, inter alia, to care for an immediate family member with a “serious health condition” and when the employee is unable to work because of a “serious health condition.” Obviously, the definition of “serious health condition” is critical to the enforcement and administration of the FMLA. The Final Rule preserves the six definitions used under the former regulations:
  1. inpatient hospital care, including a period of incapacity;
  2. a period of incapacity of more than three consecutive calendar days, plus a minimum amount of medical treatment;
  3. pregnancy;
  4. chronic condition requiring periodic medical treatments;
  5. permanent/long-term incapacity requiring supervision; and
  6. conditions requiring multiple treatments.

The Final Rule clarifies the 2nd and 4th definitions. The minimum amount of medical treatment required by the former regulations included two visits to a health care provider. As no additional guidance was provided, the Tenth Circuit, in Jones v. Denver Pub. Sch., 427 F.3d 1315 (10th Cir. 2005), held that the two visits had to occur within the period of incapacity. The Final Rule provides that the two visits must take place within 30 days of the first day of incapacity, the first visit having to occur within seven days of the first day of incapacity.

The minimum amount of medical treatment required by the former regulations could also be comprised of at least one visit to a health care provider resulting in a regimen of continuing treatment under the supervision of the provider. The Final Rule clarifies that the first visit must take place within seven days of the first day of incapacity.

With regard to chronic conditions requiring periodic medical treatments, the Final Rule defines the periodic treatments as at least two visits to a health care provider per year.

Substitution of Paid Leave
Though FMLA leave is unpaid, the FMLA allows employees to take whatever types of paid leave available to them from their employers (accrued paid vacation; personal, family or medical/sick leave) concurrently with any FMLA leave. The FMLA also permits employers to require their employees to use such paid leave concurrently with any FMLA leave. The former DOL regulations applied different procedural requirements to such substitution of paid leave, depending on the kind of paid leave being taken (vacation/personal leave vs. medical/sick leave, e.g.). The Final Rule treats all varieties of paid leave offered by an employer in the same way, including any nonspecific paid time off. If an employee elects to take any kind of paid leave concurrently with FMLA leave, she must comply with the same employer policies applicable to other employees taking such paid leave. The employer may waive any procedural requirements normally imposed on employees seeking to take paid leave. An employee’s entitlement to unpaid FMLA leave is not affected by his qualification for (or disqualification from) paid leave from his employer.

Bonus Payments
The Final Rule does away with the former regulations’ distinction between bonuses based on a) the absence of an occurrence (such as attendance-based incentives) and b) the employee’s performance (such as production bonuses). Under the former regulations, an employer was required to pay absence-of-occurrence bonuses to an employee who took FMLA leave, but the employer was not obligated to pay performance-based bonuses to those who took FMLA leave unless such bonuses were paid to employees who used non-FMLA leave. The Final Rule specifies that any bonus paid on the basis of accomplishing any particular goal does not have to be paid to employees using FMLA leave, unless such bonus is paid to employees who use non-FMLA leave.

Employer Notice Requirements
The Final Rule consolidates the various notice requirements for employers into one section (29 C.F.R. § 825.300), requiring of the employer four notices:
  1. general notice about the FMLA (via a poster, and either in an employee handbook or upon hire)
  2. an eligibility notice (when an employee requests leave or when an employer learns that the reason for an employee’s leave may be FMLA-qualifying)
  3. a rights and responsibilities notice (each time the eligibility notice is issued)
  4. a designation notice (designating leave as FMLA-qualifying).
    The Final Rule also extends the deadline to provide these notices from two business days to five.

Employee Notice Requirements
Under the former regulations, employees were allowed to notify their employers of the need for FMLA leave up to two full business days after an absence, even if earlier notice was possible. The Final Rule requires employees in need of FMLA leave to comply with their employers’ usual and customary procedures for reporting absences, excluding unusual circumstances. The Final Rule also emphasizes, though does not change, the consequences of an employee failing to provide proper notice of the need for FMLA leave.

Please note that the employee notice requirements of the above-discussed military family leave entitlements are more explicitly set forth in the Final Rule and, arguably, more accommodating to the employee.

Medical Certification Process
The Final Rule accounts for the privacy provisions of the Health Insurance Portability and Accountability Act (“HIPAA”), applying those rules to communications between employers and employees’ health care providers. First of all, an employer seeking a medical certification can only communicate with the health care provider via one of the following:
  1. another health care provider,
  2. a human resource professional,
  3. a leave administrator,
  4. or a management official.

Under no circumstances can the employer’s designated representative for such communications ever be the employee’s direct supervisor. Additionally, employers are prohibited from asking health care providers for any information not included in the certification form.

The form used for the exchange of medical information (WH-380) is also updated by the Final Rule to create separate forms for the employee and covered family members and to allow health care providers to include a diagnosis of the patient’s condition in the certification. Such diagnosis is allowed, not required.

If a medical certification is incomplete or insufficient, the employer must identify the required information in writing and give the employee seven calendar days to correct the problem.

The Final Rule allows employers to require a new medical certification each leave year for conditions that last longer than one year. Additionally, employers can request recertification of a continuing, ongoing condition every six months, in conjunction with an absence.

Fitness-for-Duty Certification
Fitness-for-duty certifications are used by employers to request from employees certifications that they are able to resume work. The Final Rule updates the certification process in two ways:
  1. the employer may require that the certification explicitly address the employee’s ability to perform the essential functions of that employee’s position; and
  2. an employee taking intermittent leave may be required to provide a fitness-for-duty certification before being allowed to return to work, if there are reasonable job safety concerns.

The Final Rule is likely to affect every covered employer under the FMLA. Every such employer should update its policies and practices to reflect these recent changes.

Antonio E. Bendezu was born in Lima, Peru. He was raised there and in Vermont, Illinois and Nebraska. He attended Washington University in St. Louis, Missouri for his M.A. in Philosophy. He graduated from the University of Nebraska College of Law and began practicing law in Nebraska in 1997. He was admitted to the Wyoming State Bar in 2007 and is now an associate attorney with Pence and MacMillan, LLC in Laramie. He has experience primarily in the areas of veterans’ rights, employment, insurance, corporations, and general civil practice.

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