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UPDATED! Summary of Changes to the FMLA Regulations

I.Family Member Military Leave

There are two new types of family member military leave: qualifying exigency and military caregiver leave.

A. Qualifying Exigency Leave

Categories of Leave

The final regulations create seven general categories for a “qualifying exigency” leave. They are:

1. Issues arising from a covered military member’s short notice deployment (7 or less days of notice) for a period of seven days from the date of notification;

2. Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross;

3. Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility;

4. Making or updating financial and legal arrangements to address a covered military member’s absence;

5. Attending counseling sessions provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the duty or call to active duty status of the covered military member;

6. Taking up to five days of leave to spend time with a covered military member for temporary, rest and recuperation leave during deployment;

7. Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of up to 90 days following the termination of the covered military member’s active duty status and dealing with issues arising from the death of a covered military member;

8. Any other event that the employer and employee agree is a qualifying exigency. (See http://www.dol.gov/esa/whd/fmla/finalrule/MilitaryFAQs.pdf)

Eligibility for Leave

The final regulations clarify that the leave is intended for use by employees who have a family member who is called to active duty as a part of the Reserve components and the National Guard, and certain retired members of the Regular Armed forces, but not as a member of the Regular Armed Forces. In addition, the final regulations clarify that a call to active duty refers to a federal, not a state, call to active duty.

The regulations create a separate definition for a “son or daughter on active duty or call to active duty status.” Unlike the definitions of child under other sections of the FMLA, an employee who has a child who qualifies for military service can be any age.

Certification

An employer can require an employee to describe the reason for the leave, provide documentation related to the leave and provide the names and contact information for all third parties who are involved with the leave. An employer may contact the third party for purposes of verifying the accuracy of the information provided by the employee without obtaining the employee’s permission.  Employers are advised to use this form: Certifications of Qualifying Exigency: Form WH-384 http://www.dol.gov/esa/whd/forms/WH-384.pdf

B. Military Caregiver Leave

Eligibility for Leave

In order to be eligible for military caregiver leave, an employee must be the spouse, son, daughter, parent, or next of kin of a “covered servicemember” who is receiving treatment for a “serious injury or illness.” At the time of the injury or illness, the servicemember must have been in the line of duty on active duty and the servicemember must have an illness or injury that renders the member medically unfit to perform his or her duties. 

Unlike the definition of the military member who is described in the “qualifying exigency leave,” a “covered servicemember” is defined as a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in “outpatient status,” or is otherwise on the temporary disability retired list. This leave is not available to care for former members of the Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list.

Length of Leave

Unlike the leave for a “qualifying exigency,” which can be taken for up to 12 weeks in the 12 month period designated by the employer, military caregiver leave may be taken for up to 26 weeks in a “single 12-month period.”  The 26-workweek entitlement is to be applied as a per-servicemember, per- injury entitlement, meaning that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness.

The final rule provides that the “single 12-month period” begins on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, and explains how to calculate an employee's FMLA leave entitlement during this “single 12-month period” when an employee requests military caregiver leave and leave for another FMLA-qualifying reason. If an employee takes leave for a reason which qualifies under the FMLA due to the serious health condition of a family member and the serious illness or injury of a servicemember, the employer is obligated to designate the leave as qualifying under the military caregiver leave.

Definitions

As in the definition of “son or daughter” under the “qualifying exigency leave,” there is no age limit for the child.

A “next of kin of a covered servicemember” is the nearest blood relative, other than the spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statute, brothers and sisters, grandparents, aunts and uncles, and first cousins. However, a covered servicemember may specifically designate in writing another blood relative as his or her nearest blood relative and if that occurs, the designated relative will serve rather than the relative who has a higher priority status.

Certification

The DOL has published a prototype form titled, Certification for Serious Injury or Illness of Covered Servicemember: WH-385 http://www.dol.gov/esa/whd/forms/WH-385.pdf

II.Eligibilty For FMLA Leave

A. 12 Months of Service Requirement

In order to be eligible for FMLA leave, an employee must have 12 months of prior experience and 1250 hours of work within the 12 month period preceding the need leave. Under the prior regulations, the 12 months did not have to be consecutive and there was no limitation on the length of the break in service. The final regulations provide that employers need only consider an employee’s service in the 7 years prior to rehire when determining whether the employee has 12 months of prior experience. 

The regulations clarify another issue regarding the requirement that an employee have 12 months of prior employment. It has been unclear whether an employee becomes eligible for FMLA leave while the employee is on a company provided leave. For example, if an employee went out on company provided disability leave after eleven months of employment, and remained on leave for over a month, it was unclear whether the employee became eligible for leave while the employee was on leave. Under the new regulations, it is clear that if the employee is otherwise eligible for leave (i.e. has completed 1250 hours of work within the prior 12 month period), the employee satisfies the 12 months of employment requirement while the employee is out on leave. This means that the employer must provide 12 weeks of FMLA leave starting at the point in time when the employee satisfies the 12 months of employment.  The period of leave prior to meeting the 12 month threshold cannot count against the employee’s FMLA entitlement.

B. Definition of a Serious Health Condition

Incapacity and Treatment

The “incapacity and treatment” type of serious health condition provides FMLA coverage to an employee or family member who is incapacitated for more than three consecutive calendar days and which involves continuing treatment by a health care provider. The treatment requirement is met either by two visits to a health care provider or one visit to a health care provider and a regimen of continuing treatment, such as a prescription of antibiotics. 

The prior regulations did not include any time requirement for an individual’s visit to the health care provider. The final regulations provide that the first (or only) visit to the provider must occur within seven days of the first day of incapacity. In addition, the second visit to the health care provider must occur within 30 days of the first day of incapacity. Because the new regulations provide an extended period in which an employee can see a provider and still obtain FMLA coverage, they will make it more difficult for employers to determine which absences qualify for protection under the Act.

Chronic Serious Health Condition

A chronic serious health condition is defined in the regulations as one which requires periodic treatment by a health care provider, continues over an extended period of time and may cause episodic rather than a continuing period of incapacity. Examples included in the regulation are asthma, diabetes and epilepsy. The final rule modifies only one part of the definition, by specifying that “periodic” means “at least twice a year.”

III.New Medical Certification Forms

The prior regulations included one medical certification form which was used for situations involving the serious health condition of an employee or a family member. The final regulations include two new medical certification forms, one for an employee with a serious health condition and another for an employee whose family member has a serious health condition.  One significant change in the forms is that the provider no longer has to check which type of qualifying leave the individual has. The provider is expected to state the medical facts and allow the employer to make the determination of whether the facts qualify as a serious health condition.

The two forms can be found at:
Employee Medical Leave: Form 380-E http://www.dol.gov/esa/whd/forms/WH-380-E.pdf
Family Member Medical Leave: Form WH-380F http://www.dol.gov/esa/whd/forms/WH-380-F.pdf

While the employer is not required to use these forms, an employer cannot require any information in addition to what is included on the forms.

IV.Authentication and Clarification of the Medical Certification

The final regulations clarify and expand the circumstances in which an employer may question the medical certification that the employee has provided to the employer.

Under the final regulations, if an employer questions whether the provider completed the medical certification form, the employer may “authenticate” it by presenting the provider with a copy of the form and asking the provider whether the information contained on the form was actually completed or authorized by the health care provider.  An employee’s permission is not required for such authentication.

If, however, an employer believes that the form is incomplete or vague, the employer must notify the employee in writing of the specific questions and allow the employee seven days to respond to the request.

If an employer is not satisfied with the clarification provided by the employee, the employer may ask the provider to “clarify” the information on the form. However, the employer may not ask for any information which is not contained in the form and the employer must comply with the HIPAA privacy rule which requires the employee to authorize the employer-health care provider contact. An employee cannot be required to sign the authorization. However, an employer may deny leave if an employee fails to provide a “complete and sufficient” certification.  

Under the prior regulations, a health care provider representing the employer had to contact the employee’s health care provider to clarify the certification.  The new regulations expand the identity of the employer representatives who can contact the provider. Under the final regulations, a human resources professional, a leave administrator, or a management official may also contact the employee’s provider.  However, under no circumstances may the employee’s direct supervisor contact the provider.

V.Four Types of Employer Notification

The final regulation clarifies that there are 4 types of employer notification requirements: General Notice, Eligibility Designation, Rights and Responsibilities Notification and Designation Notification. 

A. General Notice

An employer is required to post a notice which is accessible to applicants and employees as well as include FMLA provisions in a handbook or in a notification given to employees at the time of hire. The final regulations provide that the employer’s posting obligation can be satisfied through an electronic posting if all employees and applicants have access to the notice. The Department has published a uniform notice for both posting and distributing. See http://www.dol.gov/esa/whd/fmla/finalrule/FMLAPoster.pdf

B. Eligibility Designation

An employer is required to notify an eligible employee regarding how much leave is available to the employee, or, if the employee is ineligible for leave, at least one reason for the employee’s ineligibility.  An employer must give the designation to the employee within five days (not two days as in the prior regulations) of the employee’s notification that leave is needed. See the Notice of Eligibility and Rights and Responsibilities  http://www.dol.gov/esa/whd/fmla/finalrule/WH381.pdf

C. Rights and Responsibilities Notification

An employer is required to provide the specific expectations and obligations of the employee and explain any consequences of a failure to meet these obligations. This notification must be provided to the employee each time an employer provides an Eligibility Designation to an employee. The DOL’s Form WH-381, Notice of Eligibility and Rights and Responsibilities described above, can be used for this purpose.

D. Designation Notification

An employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days of the date the employer determines the employee’s eligibility absent extenuating circumstances. Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave. In addition, unlike the prior regulations, if the employee is no longer eligible for FMLA leave, because, for example, the employee has exhausted the employee’s leave entitlement, the employer must notify the employee within 5 days of the employee’s request for leave. If the employer will require the employee to present a fitness-for-duty certification to be restored to employment, the employer must provide notice of such requirement with the designation notice.  The Designation Notice is at http://www.dol.gov/esa/whd/forms/WH-382.pdf

E. Translation Requirement

With respect to all of the notices, if an employer’s workforce consists of a significant portion of employees who are not literate in English, the employer is required to provide the notice in a language in which the employees are literate.

VI.Other Important Changes

A. Fitness for Duty Certifications

The final regulations include new timing requirements for an employer’s notice to an employee for the need to provide a fitness for duty certification. If an employer intends to require an employee to provide a certification,  the employer must provide written notice of the requirement, including indicating whether the fitness-for-duty certification must address the employee’s ability to perform the essential functions of the employee’s position and, if so, the list of the essential functions of the employee’s position, with the designation notice. If the employer fails to provide such advance notification, the employer may not refuse to allow the employer to return to work. While an employer is not required to provide the list of essential functions to the employee, the provider may rely on the employee to provide such information.

B. Obligation to Pay Bonus to Employee on FMLA leave

The final regulations significantly change the obligation of the employer to provide a bonus to an employee who has been on leave. Under the new regulations an employer has no obligation to pay a bonus that is based on the achievement of a specified goal such as hours worked or perfect attendance when the employee has not met the goal due to FMLA leave, unless the employer pays a bonus to employees on an equivalent leave status.

C. Interaction of FMLA Leave with Paid Leave Programs

One of the helpful changes for employers is how FMLA interacts with an employer’s paid leave programs. The prior regulations stated that an employer could not put any restriction upon an employee’s use of personal time or vacation when the employee wanted to be paid for FMLA time. In the final regulations, the DOL stated that an employer can enforce its normal restrictions on the employee’s use of personal and leave time when the employee is using FMLA leave. For example, if the employer provides that paid leave is only available in increments of four hours, an employer can require an employee who takes FMLA leave to meet this requirement in order to be paid for the time away from work. 

D. Scheduling of Intermittent or Reduced Schedule Leave

In response to employer complaints about the disruption that occurs when employees take intermittent leave, the DOL modified the standard that employees must meet when requesting leave during scheduled work time. The prior regulations required that”[e]mployees needing intermittent FMLA leave or leave on a reduced leave schedule must attempt to schedule their leave so as not to disrupt the employer’s operations.” The final regulations change the standard by stating that employees have a statutory obligation to make a “reasonable effort to schedule such treatment so as not to disrupt unduly the employer’s operations.” However, if the health care provider determines that there is a medical necessity for the leave, the medical determination prevails.  While the DOL states that this is a more difficult standard to meet than the prior regulations, the change is not significant

E. Employee Notification

The final regulations clarify that the employee must provide sufficient information to provide the employer with notice of the need for leave. Calling in sick, without more information, does not trigger an employer’s obligations under the Act.

F. Light-Duty Work

The new regulations clarify that time spent performing light duty work does not count against an employee’s FMLA entitlement.

G. Providing Care for a Family Member

The FMLA provides leave in order to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition. Under the National Defense Authorization Act, leave is also provided in order to care for a covered servicemember, as described below. The only substantive change was a clarification that an employee need not be the only one available to provide care.

H. Waivers

There have been conflicting cases regarding whether an employee may waive FMLA claims without the involvement or approval of the Department of Labor or a court. The final regulations resolve that issue by stating that employees may waive FMLA claims without DOL or court involvement.

Note: This summary is intended for educational purposes and does not constitute legal advice. Parts of this summary have been taken verbatim from the regulations or from DOL publications. For further information go to http://www.dol.gov/esa/whd/fmla/

If you have any questions about the new regulations, or would like to schedule training regarding these new requirements, please contact a member of Felhaber, Larson, Fenlon & Vogt's Labor and Employment Practice Group.

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