The U.S. Department of Labor’s (“DOL”) revised Final Regulations on the Family and Medical Leave Act of 1993 (“FMLA”), including regulations on the new leaves for military family members, were published yesterday in the Federal Register. They become effective on January 17, 2009.

The Final Regulations and forms can be retrieved at our FINAL REGULATIONS and REVISED FORMS links.

The FMLA provides, among others, that an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period because of a serious health condition that makes the employee unable to perform the functions of the position of such employee, or to care for a newborn or newly adopted child, or for a son, daughter, spouse, or parent with a serious health condition.

Section 585 of the National Defense Authorization Act for FY 2008 (“NDAA”), among other things, amended the FMLA to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for 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, for a serious injury or illness.” The NDAA also entitled military family members to take FMLA leave for “any qualifying exigency” relating to a family member’s call to active duty or deployment. We reported on the NDAA in our NPC Law News Flash of January 28, 2008.

Some of the most significant rules outlined in the DOL’s news release and the Final Regulations cover:

The statutory expansion of the FMLA for military families under the NDAA:

  1. Military Caregiver Leave for family members caring for a covered service member with a serious injury or illness incurred in the line of duty while on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.
  2. Leave for “Qualifying Exigency” for Families of National Guard and Reserves: The rule defines “qualifying exigency” under the NDAA as: (1) 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 where the employer and employee agree to the leave.

Significant revisions and clarifications to the FMLA Regulations:

  1. The Ragsdale Decision/Penalties: The Final Regulations are consistent with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine Worldwide, Inc.,122 S.Ct. 1155 (2002), in regards to the designation and notification of a leave as FMLA covered. In Ragsdale the Court struck down the DOL rule that penalized employers for failing to inform workers of the designation of their leave under the FMLA. The question presented in Ragsdale was whether the DOL acted impermissibly in providing that employer-provided leave does not count against the FMLA’s leave entitlement until the employer notified the employee of its designation as FMLA leave. The rule in question allowed employees to enjoy additional time off under the FMLA because of the designation notice requirement, even if they had taken 12 weeks off already. The new rule removes this penalty and clarifies that if an employee suffers individual harm because the employer did not timely designate the leave, the employer may be liable. The employer may make a retroactive designation with proper notice to the employee.
  2. Waiver of Rights: The Final Regulations provide that employees may voluntarily settle their FMLA claims for past employer misconduct or interference with their rights, known or unknown, without court or DOL approval, and even through separation agreements. However, prospective waivers of FMLA rights will continue to be prohibited.
  3. Serious Health Condition/Continuing Treatment: The Final Regulations retain the existing definitions of “serious health conditions.” However, they clarify the criteria for coverage of continued treatment under the FMLA. For example: if an employee is taking leave involving more than three consecutive calendar days for treatment or incapacity, it must also involve at least two visits to a healthcare provider, and two such visits must occurr within 30 days of the period of incapacity. The first visit must occur within 7 days of the onset of incapacity. It also defines “periodic visits to a healthcare provider” for chronic serious health conditions as, at least, two visits to a healthcare provider per year.
  4. Bonuses, Awards, and Pay Increases: The Final Regulations allow employers to deny bonuses, awards and pay increases to an employee who does not meet or achieve certain job related goals, because he or she took FMLA leave, so long as it is done in a nondiscriminatory manner, that is, if the employer treats employees taking non-FMLA leave in an identical way.
  5. Employer Notice: The Final Regulations consolidate most employer notice requirements into one section, and among other things, increase the amount of time employers have to notify the employee of FMLA eligibility and the designation of FMLA leave to five business days, absent extenuating circumstances.
  6. Employee Notice: The Final Regulations modify the current provision that had been interpreted to allow some employees to notify their employers of their need for unforeseeable FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the Final Regulations, even if the need for leave is not foreseeable, the employee must follow the employer’s normal notice and procedural requirements, unless there are “unusual circumstances”.
  7. Medical Certification Process (Content Clarification): The Final Regulations require the employer to advise the employee of the consequences of not providing an adequate certification, and, among other things, limit who may contact the health care provider on the part of the employers’ staff to leave administrators, HR professionals, or members of management, but bar an employee’s direct supervisor from making the contact. The employer may still use another health care provider for such contact and inquiries. The Final Regulations also require that prior to any such contacts with the employee’s healthcare provider, the employer must first allow the employee an opportunity to resolve any deficiencies in the certification, stating in writing what additional information is required.
  8. Intermittent Leave or Reduced Leave Schedule: The Final Regulations clarify that employees who take intermittent FMLA leave have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to unduly disrupt the employer’s operations, and the medical need can best be accommodated through intermittent or reduced leave schedule. The employer may require the employee to transfer temporarily.
  9. Fitness for Duty Certification: The Final Regulations also clarify that employers may require a fitness-for-duty certification to address an employee’s ability to perform essential job functions, but only in connection with the health condition for which FMLA leave was taken and if the employer has a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Clarification of the certification may only be requested in connection with the serious health condition for which FMLA leave was taken.
  10. Gaps in Service: The Final Regulations clarify the requirement that employees are eligible to take FMLA leave only if they have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave. It adds that, although the 12 months of employment need not be consecutive, employment prior to a break in service of seven years or more need not be counted.

Nolla, Palou & Casellas, LLC suggests covered employers to revise their current employee handbooks, leave and other policies which may be affected, as well posted notices, to take into account the provisions of these Final Regulations by their effective date.

If you have any questions or wish additional information regarding this matter, please contact any of the attorneys of NOLLA, PALOU & CASELLAS, LLC.

Nolla, Palou & Casellas, LLC represents management in corporate, employment, labor, benefits law and litigation.

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