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Department of Labor Releases New Family and Medical Leave Act Guidelines

December 17, 2008

On November 17, 2008, the United States Department of Labor (”DOL”) published new rules under the Family and Medical Leave Act of 1993 (“FMLA”).  The new rules implement amendments to the FMLA enacted earlier this year in the National Defense Authorization Act of 2008 (“NDAA”), which expanded FMLA coverage to include two types of leave for military families: 1) Military Caregiver Leave, and 2) Qualifying Exigency Leave (for families of National Guard and Reserves members).  The new FMLA rules, which go into effect on January 16, 2009, also update several existing regulations not related to military leave or the NDAA. 

The Amendments to the FMLA Contained in the NDAA

The NDAA provides two new military family leave entitlements for families of members of the Armed Services, Reserves and National Guard who are on active duty or were injured while on active duty.  The new DOL rules address only the second type of military leave – qualified exigency leave.

1.        Military Caregiver Leave

The caregiver leave entitlement provides up to 26 weeks of unpaid leave during a single 12-month period for the spouse, children, parents or “next of kin” of a service member with a serious injury or illness incurred in the line of duty.  A serious injury or illness includes ongoing outpatient medical treatment, recuperation, or therapy.  Like other types of FMLA leave, military caregiver leave may be taken on an intermittent or reduced-schedule basis; however, an employee is limited to 26 weeks of leave in a single 12-month period. 

2.        Qualified Exigency Leave for Families of National Guard and Reserves Members

The qualified exigency leave provision of the NDAA is intended to help families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation.  A "contingency operation" is defined as an "action or operation against an opposing military force," excluding from coverage relatives of service members who are deployed on training or other missions not in support of combat operations.  The provision allows a spouse, parent or child of such a service member to use the 12-week unpaid leave period provided under the FMLA for “any qualifying exigency” related to the service member’s call to active duty.  Employees must provide notice of leave to the employer to the extent such notice is "reasonable and practicable."

The NDAA left to the DOL the task of defining a “qualifying exigency.”  Rather than define specifically what activities qualify as FMLA leave under the new provision, the DOL’s new rules define a “qualifying exigency” simply by listing a number of broad categories for which employees must be permitted to use FMLA leave.  These include: 1) activities that must be undertaken as the result of a short-notice deployment; 2) military events and related activities; 3) childcare and school activities; 4) financial and legal arrangements; 5) counseling; 6) rest and recuperation; 7) post-deployment activities; and 8) additional activities not encompassed in the other categories but agreed to by the employer and employee.

Other Regulatory Updates to the FMLA

The new DOL rules also contain updates to several existing FMLA regulations, unrelated to the new leaves authorized by the NDAA, involving employer and employee notice requirements, qualification for leave, medical certification of qualifying leave and other issues.  The following rules also will go into effect on January 16, 2009.  

Definition of a Serious Health Condition:  Under the FMLA, employees must be permitted to take leave for the employee’s own or a family member’s “serious health condition.”  The new rules clarify three definitions of a “serious health condition,” which were set forth in prior regulations.  One of those definitions provided that a serious health condition existed if the employee experienced three consecutive calendar days of incapacity plus two visits to a health care provider; the new rules provide that the two visits must occur within thirty days of the period of incapacity.  Another definition contained in the prior regulations stated that a “serious health condition” existed if an employee experienced three consecutive calendar days of incapacity plus a regimen of continuing treatment; the new rules provide that the employee’s first visit to a health care provider must have occurred within seven days of the first day of incapacity.  Finally, leave based on "periodic visits to a health care provider" for a chronic serious health condition is defined specifically in the new rules as at least two visits to a health care provider per year.

Light Duty:  The new rules state that time spent by an employee on "light duty" work does not count against an employee's FMLA-leave entitlement.  If an employee is doing light duty work (as contrasted with intermittent leave), he or she is not on FMLA leave.

Employer Notice Obligations:  The new rules clarify that an employer must provide employees with (1) a general notice of their FMLA rights (through a poster or employee handbook distributed at the time of hire), (2) a notice of eligibility and rights and responsibilities (WH-381) at the time of a qualifying leave, and (3) a notice designating qualifying leave as FMLA leave (WH-382).

Employee Notice:  The new rules modify the current provision that had been interpreted to allow employees to notify their employers of their need for FMLA leave up to two full business days after an absence began.  Under the new rules, the employee must follow the employer's normal and customary call-in procedures, absent “unusual circumstances.”

Medical Certification Process (Content and Clarification):  In light of the enactment of the Health Insurance Portability and Accountability Act (“HIPAA”), the new rules prohibit an employee’s direct supervisor from contacting the employee’s health care provider and specify that only a human resources professional, leave administrator, management official or other health care professional may contact an employee’s health care provider to obtain information necessary to determine the employee’s entitlement to FMLA leave.  Furthermore, employers may not ask health care providers to provide any information beyond that which is required by the certification form.  The DOL has revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  It has also revised its Certification of Qualifying Exigency For Military Family Leave (WH-384) as well as its Certification for Serious Injury or Illness of Covered Servicemember ­– for Military Family Leave (WH-385).

Medical Certification of Long-Lasting Conditions:  The new rules provide that employers can request a new medical certification each leave year for medical conditions that last longer than one year.  Regarding recertification of ongoing or chronic conditions, including those described by health professionals as of “lifetime” or “unknown” duration, the rules provide that employers can require recertification of the condition every six months.

Fitness-For-Duty Certifications:  The new rules allow an employer to require that an employee on intermittent FMLA leave provide a “fitness-for-duty” certification (stating that the employee is able to return to work) before returning to work where reasonable job safety concerns exist.  The new rules also provide that an employer may require that any “fitness-for-duty” certification specifically address the employee’s ability to perform the essential functions of the employee’s job.

Perfect Attendance Awards:  The rules now allow an employer to deny a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA-leave, but only if the employer treats employees taking non-FMLA leave in an identical way.

Penalties for Employer’s Failure to Designate FMLA Leave:  In a 2002 decision, Ragsdale v. Wolverine World Wide Inc., the U.S. Supreme Court invalidated an existing regulation requiring an employer to provide an employee who was not notified that his or her prior leave qualified as FMLA leave 12 additional weeks of FMLA-protected leave.  In response to this decision, the new rules remove this notice penalty, but provide that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable for such harm.

Waiver of Rights:  The DOL has reaffirmed its longstanding position that employees may voluntarily settle or release their FMLA claims without court or DOL approval.  However, prospective waivers of FMLA rights are prohibited.

The Impact of the DOL’s New FMLA Guidelines on Employers

The DOL’s new rules could complicate administration of FMLA leave and lead to increased litigation against employers who are not aware of or do not take the proper steps to comply with the expanded leave and notice provisions.  Employers covered by the FMLA should take steps to: (1) provide leave to qualifying employees under the NDAA, and (2) revise its FMLA policies and procedures to ensure compliance with the new rules.

If you have any questions concerning compliance with the new FMLA guidelines, please contact any of the Firm’s attorneys.