Nearly two years in the making, and after considering nearly twenty thousand comments, the U. S. Department of Labor has issued new final regulations regarding the Family and Medical Leave Act (FMLA). These regulations provide the first Department of Labor discussion of recent revisions to the FMLA that grant rights to unpaid leave to military families and substantially revise the enforcement of the FMLA as currently in place. Also the final rule modifies the proposed rules the Department of Labor issued in February 2008 in several significant ways.

Military Leave
The final regulations provide the first administrative guidance regarding the National Defense Authorization Act (NDAA) which allows employees to take FMLA qualifying leave because of a “qualifying exigency” rising out of a family member being on active duty in the armed forces and which grants unpaid military care giver leave of up to twenty-six weeks. The Final Regulations provided needed guidance on what the NDAA means by the term “qualifying exigency:” an issue the NDAA specifically left to be addressed by regulation. The Final Regulations define seven main categories of “exigency leave:” 1) Short notice deployment (matters arising because a member of the military learns that he or she is being called into duty less than seven days before deployment); 2) Military events and related activities (attending official ceremonies of the military or Red Cross); 3) Child care and school activities; 4) Financial and legal arrangements; 5) Counseling; 6) Rest and recuperation (which is limited to five days of leave to spend time with a member of the military who is on short-term R & R); and 7) Post-deployment activities (such as arrival ceremonies and reintegration briefings). Importantly, these activities must be related to circumstances arising out of being on, or called to, active duty; everyday, regular and routine matters do not qualify. These categories are not exclusive, other events may arise which would be a covered exigency provided the employer and employee agree.
 
The regulations also clarify how the NDAA should be implemented when providing twenty-six weeks of unpaid FMLA military caregiver leave for relatives of seriously injured or ill members of the armed services. Military caregiver leave is available to more than spouses, parents and children (the limit on most FMLA leave) but is available to the service member’s next of kin (the service member’s nearest blood relative who is not the service member’s spouse, parent, or child). This twenty-six weeks of unpaid caregiver leave must be taken over a single twelve-month period beginning with the first day of the leave. As a result, it is very likely that this leave would be calculated on a calendar different than what an employee is using to calculate other FMLA leave (the Final Regulations provide some helpful examples that explain how to calculate leave under these circumstances). Finally, while military caregiver leave can be taken only once per injury, more than one family member may qualify for leave for the same injury and each relative may take a new period of leave for any subsequent injuries so long as the service member remains in the military.

Redefining Serious Health Condition
The Final Regulations also make some substantial changes to how the FMLA in interpreted. They revise the definition of a “serious health condition” that triggers the FMLA by stating that where an employee has been incapacitated for more than three calendar days plus has taken two visits to a health care provider, the first visit must occur within seven days of the first day of the incapacity and the second visit must occur within thirty days. Furthermore, for an incapacity to qualify as a chronic, serious health condition, the employee must visit a health care provider at least twice a year.

Medical Certifications
When an employee makes a claim for leave under the FMLA, the Final Regulations provide some important guidance regarding the employer’s ability to follow up on an employee’s medical certification. If the employee’s initial medical certification is incomplete or insufficient, the employer must designate, in writing, what information is missing and give the employee seven days to cure the deficiency before denying the request or asking for a second certification. This contact with the employee’s healthcare provider must be via the HR department, leave coordinator, health care provider or other management level employee, but under no circumstances can it be the employee’s direct supervisor. Employers may also request a new medical certification for each leave year for conditions that last longer than a year.

Employers may require a health care provider to specifically address in a return-to-work or fitness-for-duty certification whether the employee can perform the essential functions of his or her job. Employers can also require an employee to provide a fitness-for-duty certification before the employee may return to work from an absence while on intermittent leave, if the employer has reasonable concerns about the employee’s ability to safely perform a job. Importantly, however, the employer must notify the employee of these fitness-for-duty requirements at the time FMLA leave commences.

Use of Light Duty
The Final Regulations clarify that when an employer places an employee who is on FMLA leave on light duty, the time spent on light duty does not count against the employee’s FMLA leave entitlement. The Department of Labor’s position is that the FMLA only requires employers to give unpaid leave, so an agreement by an employer and employee to a light duty position falls outside the FMLA’s purview. Where an employer and employee do agree to a light duty arrangement, such an agreement is not a waiver of the employee’s rights under the FMLA and the employee’s right to restoration of his or her original job is held in abeyance while the employee performs light duty (or until the end of the FMLA leave year).
 
Workplace Rules
The Final Regulations will make it easier for employers to enforce their workplace rules. First, employees have to follow their employer’s call-in policies when they are planning to miss work “absent unusual circumstances.” As the law now stands, employees have up to two days after an absence to notify the employer that their time off was needed for FMLA-qualifying reasons. The Final Regulations establish that employers can decline to treat absences as FMLA leave if the employee fails to properly notify the company of his or her need for leave under the employer’s guidelines. Employers may award perfect attendance type bonuses to employees and not provide such bonuses to individuals who have taken FMLA leave, provided the employer does not provide the bonuses to individuals who take other forms of unpaid leave. Employers may provide such bonuses to individuals who take paid vacation without being obligated to provide bonuses to individuals who take unpaid FMLA leave, because those leaves are not similar. Finally, an employee who elects to take any type of paid leave concurrently with his or her FMLA leave must follow the same terms and conditions of the leave policy as apply in all other circumstances, though the employer may waive any procedural requirements.

Employer Postings
Employers remain obligated to notify all employees of their rights under the FMLA, both by postings and by providing a notice of FMLA rights in a handbook or similar written materials or providing a general notice to new employees upon hire. (These notice requirements do not need to be updated each year in a change from the proposed regulations.) Where an employer denies an employee FMLA leave because the employee is not eligible, the employer need only provide one reason why the employee is not eligible (the proposed regulations had implied that the employer would be obligated to provide all possible reasons).

Releases and Waivers
Finally, the Final Regulations clarify the Department of Labor’s stance that employees may waive FMLA claims based on past employer conduct whether such claims are filed or not filed, known or unknown by the employee on the date the release is signed. This clarification addresses an issue that created a split in the federal courts over whether waivers of FMLA claims based on past employer actions required court approval. Waivers of claims based on employer conduct that had not occurred prior to the waiver’s signing remain impermissible.

The upshot for employers is that while these regulations have been two years in the making, implementation must be quick because the regulations become effective January 16, 2009. That gives employers very little time to train staff on these changes and prepare the necessary new notices.

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