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Latest News... URGENT UPDATE - New FMLA Regulations

Important Changes take Effect on 1/16/09 -- Policy Changes Required

The United States Department of Labor has finally issued long-awaited updates to the regulations governing the Family and Medical Leave Act (FMLA).  These new regulations cover recent expansions of the law and attempt to clarify a number of other issues.  Employers will be required to update their personnel policies as a result of these changes.

I. Military Leave Changes

As a result of the National Defense Authorization Act (“NDAA”), the FMLA now provides (1) Military Caregiver Leave (also know as “Covered Service Member Leave”) and (2) Qualifying Exigency Leave, as follows: 

Military Caregiver Leave: Provides up to twenty-six (26) weeks of leave during a “single 12-month period” for a family member (broadly defined) to care for a service member’s service-related serious illness or injury.  

Qualifying Exigency Leave: Provides up to twelve (12) weeks of leave to manage family affairs while a member of the National Guard and Reserves is on active duty in support of a contingency operation.  Under the regulations, a “qualifying exigency” would include (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 not encompassed in the other categories, but agreed to by the employer and employee.

Please refer to the update of January 28, 2008 for additional detailed information on the new law. 

II. Other Changes

Definition of a “Serious Health Condition” -- The new regulations address the problems created by the open-ended nature of the prior definitions of a serious health condition, as follows: 

o       Three (3) days of incapacity plus two visits to the health care provider -- Now, the first visit must occur within seven (7) days of the onset of incapacity and the second visit must occur within thirty (30) days of the onset of the incapacity. 

o       More than three (3) days of incapacity plus a regimen of continuing treatment -- Now, the first visit must occur within seven (7) days of the onset of incapacity.

o       Chronic conditions -- The required “periodic visits” to care for a chronic serious health condition must include at least two (2) visits per year to the health care provider.

Employee Notice Requirements -- The regulations clarify that employees may be required to follow the employer’s usual and customary call in procedures, absent extraordinary circumstances.  The prior version of the regulations had allowed employees to request FMLA coverage up to two (2) full business days after the start of the absence, even if it would have been possible to request leave at an earlier time.

Employer Notice Requirements -- The new regulations expand employer notice obligations under the Act.  While the Agency aimed to streamline the regulatory treatment of these obligations, they remain cumbersome and continue to present a fertile ground employer errors.  Employers are specifically required to provide (1) a general notice of FMLA rights through, among other options, a wall poster; (2) an eligibility notice once an employee has requested an FMLA-covered leave; (3) notice of the employee’s rights and responsibilities under the Act; and (4) notice that a particular period of leave has been designated as FMLA leave.  The time frame for providing employee-specific notices has increased from two (2) days to five (5) days.  Importantly, the new regulations clarify that an employee may recover for individualized harms actually resulting from the employer’s failure to provide proper notice of FMLA rights.  Such recovery could include a monetary award for damages and/or equitable relief such as reinstatement.  However, the regulations no longer contain any categorical penalty relating to such failures and oversights.

New Forms -- The regulations provide updated forms intended to improve the content and clarity of the certification process.

Employer’s Right to Contact the Employee’s Health Care Provider -- Employers may contact the health care provider to authenticate the medical certification or obtain clarification of its contents.  However, the person contacting the health care provider on the employer’s behalf must himself be a health care provider, an HR professional, a leave administrator or some other management official.  The representative cannot be the employee’s direct supervisor.  Finally, representative’s inquiry cannot go beyond the scope of information required by the certification form.

Incomplete Certifications -- Under the new regulations, the employer is required to specify in writing what additional information is required.  Thereafter, the employee will be entitled to seven (7) calendar days to provide a completed certification.

Re-Certification Rights -- Employers may request re-certification every thirty (30) days, unless a longer duration of absence was specified by the initial certification.  In any event, however, the employer will be allowed to require re-certification as frequently as every six (6) months.  This latter time period would apply in the event of a medical condition initially certified as lasting a “lifetime” or for some extended period of unknown duration.

Substitution of Leave -- The old regulations contained complicated rules and restrictions relating to the substitution of paid leave for unpaid FMLA leave.  Under the new regulations, (1) all forms of paid leave are treated the same; (2) employees desiring to substitute paid leave for unpaid leave must follow the terms and conditions of the paid leave policy at issue; and (3) the employer may waive any procedural requirements relating to any form of paid leave.

Light Duty -- In response to isolated court rulings on the issue, the new regulations clarify that time spent on light duty cannot count against FMLA leave. 

Fitness for Duty Statements -- The regulations clarify that employers are allowed to follow uniformly applied policies and practices regarding return to work “fitness for duty” statements.  Under such a general policy, the employer may specifically require a statement that the employee be able to perform the essential functions of his or her job.  In the event of genuine safety concerns, the employer may require a fitness for duty certification before an employee returns from intermittent leave.  Generally speaking, the rules for “fitness for duty” statements remain cumbersome.  Employers should consult counsel for detailed and specific guidance before implementing such requirements.

Waiver of Rights -- The new regulations establish that employees may voluntarily waive pre-existing FMLA claims without any need for obtaining judicial or Department of Labor (DOL) approval of the settlement and release agreement.

Perfect Attendance Awards -- Under the new regulations, use of FMLA leave may disqualify an employee from eligibility for a perfect attendance award.


Friday, November 14, 2008



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