Legal Alert: FMLA Amendments and New Regulations

On January 28, 2008, President Bush signed into law the National Defense Authorization Act, which amended the FMLA by providing two different types of military-related leave. In late November, the Department of Labor released final regulations interpreting the new military-leave provisions and revising the current FMLA regulations. The final regulations are set to go into effect on January 16, 2009. Together, the FMLA amendments and the revised regulations represent a significant change in the law for all employers covered by the FMLA. Among other changes, the new amendments and revisions impact the FMLA in the following ways:

Military-Related Leave Provisions

Military Caregiver Leave: The FMLA now permits an eligible employee to take leave to care for a close family member who was injured in active duty military service. An eligible employee may take up to 26 weeks of leave to care for a family member who is a covered service member with a serious illness or injury.

The regulations interpret “serious illness or injury” broadly to cover any injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of the member’s office, grade, rank or rating.

Importantly, this provision became effective immediately and therefore is currently in effect.

Qualified Exigency Leave: In addition to providing Military Caregiver Leave, the amendments also created a new qualifying reason for the 12 week leave. An eligible employee whose spouse, child, or parent is on, or has been called to, active duty in the National Guard or Reserves can now take leave for a qualifying exigency.

The new regulations provide eight categories of events that qualify as exigencies under this provision. They 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 agreed upon by the employer and employee.

Other Notable Changes to the FMLA

Employee Eligibility: The regulations clarify that the 12 months of employment that an employee must have with the employer in order to be eligible for FMLA do not need to be consecutive. However, if there is a break of seven years or more between periods of employment, an employer does not need to count any time before the break as going towards the 12 month requirement. The regulations also contain two limited exceptions to the seven year break rule.

Serious Health Condition: Under the new regulations, in order to satisfy the “continuing treatment” component of a “serious health condition,” an employee must visit a health care provider two times within 30 days of the first incapacity and the first visit must be within seven days of the first day of the incapacity. Additionally, if a serious health condition is chronic, an employee must visit a health care provider at least twice a year.

FMLA Leave and Holidays: The new regulations specify when, and under what circumstances, a holiday will be counted against an employee’s FMLA allotment.

Substitution of Paid Leave: The new regulations leave most of the old regulations on this subject intact, though they contain the additional requirements that an employee who elects to take paid leave must follow the employer’s paid leave policies and the employer must make employees aware of any additional procedural steps related to the use of the paid leave.

Bonuses: The new regulations clarify that an employer can deny an employee a bonus, even if the employee failed to achieve the specified goal because she was on FMLA leave, so long as employees on non-FMLA leave are treated in the same manner.

Light Duty: The new regulations explain that if an employee voluntarily takes a light duty assignment, the light duty work does not count against her FMLA entitlement.

Waiver: According to the new regulations, an employee may now voluntarily settle or release FMLA claims based on past employer conduct without first obtaining Department of Labor or court approval.

Employer Notice: The new regulations provide for three different employer notices and give detailed guidance on the necessary content of each notice and when each notice must be given.

Employee Notice: Absent unusual circumstances, the new regulations require that an employee comply with an employer’s usual and customary procedure for requesting leave, and stipulate that the failure to do so can now be grounds for delaying or denying the employee’s FMLA request.

Medical Certification: The new regulations provide two separate certification forms; one to be used when an employee seeks leave for his own serious health condition, and another to be used when the employee requests leave to care for a family member. The new regulations also allow certain individuals, acting on behalf of an employer, to directly contact the employee’s health care provider to authenticate or clarify information on a medical certification.

Second/Third Opinion Process: Under the new regulations, an employee must authorize the release of relevant medical information to the second/third opinion health care provider.

Recertification: Generally, the new regulations permit an employer to request a recertification every 30 days. The regulations do provide, however, a few limited circumstances where a recertification can be requested in less than 30 days.

Fitness for Duty Certification: Among other changes, the new regulations expressly prohibit an employer from requiring an employee to undergo a fitness for duty certification unless the employee had been previously advised of this requirement.

Impact on Employers:  The addition of the military-related leave provisions to the FMLA creates two entirely new categories of leave under the statute. For the most part, the new regulations clarify a number of rules that had previously been vague and confusing, and generally do not increase an employer’s burden under the FMLA. In preparation for the January 16, 2009 effective date, employers should revise their FMLA policies to include the military-leave provisions. Employers should further review their policies and procedures to ensure that they reflect the changes made by the new regulations. Human Resource personnel who administer FMLA should be trained concerning compliance with these new regulations. If you are interested in such training, please contact Caroline DiMauro at (513) 639-3865.