The Department of Labor has published new regulations for the FMLA, effective January 16, 2009.
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FMLA UPDATE
Department of Labor Updates FMLA Regulations
Barker Olmsted & Barnier FMLA/CFRA Checklist Now Available
By Christopher W. Olmsted
The U.S. Department of Labor has published new regulations governing the Family Medical Leave Act (FMLA). The rules are effective on January 16, 2009. Below is a summary of the more significant changes.
FMLA Eligibility
Twelve Months of Service: Employees must have worked a cumulative 12 months for an employer. The 12 months need not be consecutive. The old regulations did not state how far back one must count. For example, if an employee worked ten years ago, then returned to the company this year, does the old service count? The new regulations state that service during the last seven years must be counted.
1,250 Hours Worked: Employees must have worked 1,250 hours during the past 12 months. The new regulations state that for employees returning from military Reserves or National Guard service, the employer must count hours that the employee would have worked, but for the military service.
50 Employees within 75 Miles: With a nod towards modern trends, the new regulations count telecommuters who report to the work location as part of the “50 employees.”
Serious Health Condition
Issue: One qualifying reason for FMLA leave is the “serious health condition” of the employee or of certain family members. The FMLA regulations include six individual definitions of “serious health condition.”
The Problem: One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider.” There has been debate over when those two visits must take place in reference to the three days of incapacity. As to some of the other definitions of a serious health condition, there has also been uncertainty over medical treatment in association with a “regimen of continuing treatment” and “chronic conditions.”
The Solution: Under the new regulations, where there are more than three days of incapacity, (1) the two health care provider visits must occur within 30 days of the beginning of the period of incapacity and (2) the first visit to the health care provider must take place within seven days of the first day of incapacity.
A second way to satisfy the definition of serious health condition under the current regulations involves more than three consecutive, full calendar days of incapacity plus a “regimen of continuing treatment.” The new regulations clarify here also that the first visit to the health care provider must take place within seven days of the first day of incapacity.
Thirdly, the new regulations add clarity to another type of serious health condition, the “chronic condition.” To qualify as a serious health condition, a chronic condition has required “periodic visits” to a health care provider, but it was not clear what was meant by “periodic.” The new regulations define “periodic visits” as at least two visits to a health care provider per year.
Employee Notice Obligations
Issue: Employees are to provide notice to the employer of the foreseeable need to take FMLA leave. Ideally, notice should be given 30 days in advance. If that is not possible, the employee should provide notice as soon as practicable, and in most cases no less than two business days in advance.
The Problem: Some employees provided the minimal two days notice, even if they could have provided notice more quickly. Lack of advance notice (e.g., before the employee’s shift starts) for unscheduled absences is one of the biggest disruptions employers point to as an unintended consequence of the current regulations.
The Solution: The new regulation provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances. For example, if employees are required to call a particular person or number to report the absence, the employee may also be required to do so for FMLA leave. The regulations also provide that in most cases, the employee should notify the employer of the need for leave on the same or next day that he or she learns of the need for leave. The final rule also highlights (without changing) the existing consequences if an employee does not provide proper notice of his or her need for FMLA leave. Depending on the reasons for the delayed notice, the employer may in turn delay the commencement of the FMLA leave.
“For example,” states the new regulations, “if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week (thus, if the employer elects to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave will not be FMLA protected).”
Employer Notice Obligations
Issue: The FMLA requires employers to provide notice to employees regarding their FMLA rights. General notice must be given in a workplace poster and in the handbook or other written handout. Specific notice of rights and obligations must be provided at the time the employee requests leave.
The Problem: The notice requirements were scattered in the regulations and thought to be internally inconsistent.
The Solution: The new rule consolidates all the employer notice requirements into a “one-stop” section of the regulations and reconciles some conflicting provisions and time periods under the current regulations.
General Notice – Display a workplace poster at each worksite with at least one eligible employee (electronically now allowed), and a handbook or handout policy.
Eligibility Notice - When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances
The eligibility notice must state whether the employee is eligible for FMLA leave. Here is a new requirement: If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible, including as applicable the number of months the employee has been employed by the employer, the number of hours of service worked for the employer during the 12-month period, and whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
Notice of Rights and Responsibilities - The employer must also provide notice of the rights and responsibilities associated with the leave (for example, medical certification, fitness for duty, use of paid leave, etc). This requirement has not changed. The DOL has provided an employer response form for this purpose.
Designation Notice - The employer must expressly, in writing, notify that the leave will count against the employee’s leave entitlement. An added new requirement: the notice must also notify the employee, to the extent known, the amount of leave time that will be counted.
Deadline for Notice - In order to ensure employers are able to better inform employees under the new notice provisions, the final rule extends the time for employers to provide various notices from two business days to five business days.
Retroactive Designation - Consistent with a U.S. Supreme Court case titled Ragsdale v. Wolverine Worldwide, Inc., the new regulations permit an employer to retroactively designate FMLA leave in some circumstances. This designation must take place in writing and can only be asserted where it does not cause harm or injury to the employee.
Medical Certifications: Content and Clarification
Issue: The employer may require an employee to provide medical certification from his or her health care provider, verifying the need for leave because of qualifying serious health condition. The employee has 15 days to return a certification.
The Problem: Employers encountered problems associated with incomplete certifications. Also, the FMLA certification rules conflicted with the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of the HIPAA privacy rule to communication between employers and employees’ health care providers.
The Solution: Employers may, in writing, identify deficiencies in an incomplete certification, specify what additional information is needed, and require employees to resubmit certifications within seven days. If the employee fails to comply, the employer may deny FMLA leave.
If the employer needs clarification or authentication of the certification, the employer’s representative may contact the health care provider. The new regulations add a requirement that the employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor.
Further, employers may not ask health care providers for additional information beyond that required by the certification form. In association with the updated regulations, the Department of Labor has updated its optional Form WH-380 to create separate forms for the employee and covered family members and by allowing—but not requiring—health care providers to provide a diagnosis of the patient’s health condition as part of the certification. (Note: California employers should use the California-specific form.)
According to the DOL, “These changes will improve FMLA communications, protect the privacy of workers, and help ensure that the employees who need leave will get it and not be subject to repeated requests for additional information or be denied FMLA leave on a technicality.”
Medical Certification Process (Timing)
Issue: Employees may request recertification of a medical condition. Under the current regulations, employers may generally request a recertification no more often than every 30 days and only in conjunction with an FMLA absence unless a minimum duration of incapacity has been specified in the certification, in which case recertification generally may not be required until the duration specified has passed.
Problem: The DOL published an opinion letter stating that employers may request a new certification each leave year for conditions that last longer than one year. However, the regulations did not address this issue. Further, the current regulation is unclear as to the employer’s ability to require recertification when the duration of a condition is described as “lifetime” or “unknown,”
The Solution: Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Also, an employer to request recertification of an ongoing condition every six months in conjunction with an absence.
Fitness For Duty
Issue: The current FMLA regulations allow employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. This is called a “fitness-for-duty” certification.
The Problem: The regulations allowed the employee to return with a “simple statement” from the employee’s healthcare provider that the employee was able to return to work.
The Solution: The new rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.
Light Duty Not FMLA Leave
Does “light duty” qualify as FMLA leave? The regulations were not clear. A few federal courts had held that yes, an employee uses up his or her 12 week FMLA leave entitlement while on a “light duty” assignment following FMLA leave.
The new regulations state that light duty does not count against an employee’s FMLA leave entitlement. Moreover, if an employee returns from FMLA leave and is put on light duty, the employer remains obligated to restore the employee to the same or equivalent position upon the conclusion of light duty. There is one caveat: the employer is relieved of the duty to restore the employee to his or her position if light duty extends beyond the applicable 12-month FMLA leave year. (Note: for this and other reasons, employers should designate their leave year by selecting one of the options made available under the regulations.) (See §825.220(d))
Substitution of Paid Leave
Issue: The regulations modified the rules for substitution of paid leave. Although FMLA leave is unpaid, the statute regulates the use of company-provided paid time off. The statute provides that employees may take, or employers may require employees to take, any accrued paid vacation, personal, family or medical or sick leave, as offered by their employer, concurrently with any FMLA leave. This is called the “substitution of paid leave.”
The Problem: The old regulations applied different procedural requirements to the use of vacation or personal leave than to medical or sick leave. Employers could restrict the substitution of paid sick or medical leave under the FMLA to situations in which they would otherwise provide such paid leave. Vacation or personal leave was different. Employers were not permitted to restrict the substitution of paid vacation or personal leave in any manner. This meant that employees on FMLA leave could use disregard employer restrictions on the use of such leave (for example, providing two days advance notice, or using full-day increments).
The Solution: Under the new rule, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic “paid time off”). An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave. The employee is always entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave and the employer may waive any procedural requirements for the taking of any type of paid leave.
The new regulations also clarify the rule as it applies to employees receiving workers’ compensation or other disability benefits. Employers may not require substitution of company-provided paid leave where the employee on FMLA leave is also receiving workers’ compensation disability benefits or other forms of disability benefits. Substitution of paid leave is only permissible where the leave is otherwise unpaid; receipt of disability benefits renders the leave paid. Of course, the employee may still elect to receive company paid leave benefits.
Perfect Attendance Awards
Issue: Some companies provide awards to employees for attendance. Existing FMLA regulations prohibit employers from disqualifying or penalizing employees who have taken FMLA leave.
The Problem: Unfairness perceived by employees and employers who saw employees on FMLA leave obtain a perfect attendance award for a period during which the employee was absent from the workplace.
The Solution: The new regulation changes the treatment of perfect attendance awards to allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way.
Waiver of Rights
The new regulations codify the Department of Labor’s longstanding position that employees may voluntarily settle or release their FMLA claims. The issue may arise, for example, in the context of a severance and release agreement. At least one court had recently misinterpreted the regulations to mean that releases were not permitted. Rights may be waive retroactively (i.e., after the fact), not prospectively.
Conclusion
Employers covered by the FMLA should begin planning now for the January 16, 2009 implementation date.
Note that in California, the California Family Rights Act (CFRA) regulations have not been amended. Therefore a discrepancy may arise between federal and California leave rights. As always, the rule providing superior rights to the employee should be followed.
(Note: The new regulations also address the new military family leave. Those regulations will be summarized in a separate Legal Update article to be published in January 2009.)
Complimentary FMLA Checklist
Barker Olmsted & Barnier APLC offers a complimentary FMLA/CFRA Checklist for employers. Email Chris Olmsted at cwo@barkerolmsted.com to request a copy.
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This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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