On February 11, 2008, the U.S. Department of Labor (“DOL”) issued proposed revisions to the Family Medical Leave Act (“FMLA”). The FMLA, effective since 1993, provides eligible workers with rights to job protection during absences caused by the birth or adoption of a child or for a serious health condition of the worker or a qualifying family member.
The proposed changes update the regulations to reflect court decisions, to clear up ambiguities, and to address issues raised since their implementation. Notably, a new section will address legislation enacted on January 28 expanding FMLA entitlement for certain military family members caring for a service member with a serious illness or injury or for as yet undefined “qualifying exigencies” arising out of the fact that a service member is deployed to active duty.
A summary of noteworthy substantive changes is contained in this bulletin. Employers should become familiar with these new FMLA regulations so that they can revisit their policies and procedures prior to the proposals being adopted.
“Eligible” employees
The DOL rules would adopt the ruling in Rucker v. Lee Holding, Co., 471 F.3d. 6 (1st Cir. 2006). In that case, the First Circuit held that the time an individual was employed prior to a five year break in service did not count towards the 12 month employment eligibility requirement. The DOL proposes two exceptions to the five year break in service rule: (1) where the break is due to an employee's fulfillment of military obligations; and (2) where the break is an approved absence or unpaid leave pursuant to a written agreement where the employer expresses its intent to rehire the employee.
Continuing Treatment
The DOL proposes that the employee must have two (2) visits to the health care provider within thirty (30) days of the beginning of the period of incapacity unless extenuating circumstances exist, thereby eliminating the completely open-ended time frame under current regulations.
Leave for Pregnancy or Birth
No substantive change was proposed to this provision, but language was added to emphasize that if intermittent or reduced schedule leave is medically necessary for a serious health condition of the mother or a new-born child then no employer agreement is necessary.
Definition of “Health Care Providers”
The DOL proposes to add Physician Assistants to the list of recognized health care providers without limitation.
Scheduled Holidays
The DOL addresses whether scheduled holidays should count against an employee’s FMLA leave. The DOL proposes that (a) if leave is less than a full week, the scheduled holiday will not count against leave; and (b) if leave continues for one full week or more, then the scheduled holiday will count as part of the leave unless the employer’s workplace is closed for one or more full workweeks during a holiday.
Intermittent Leave
An employee who takes intermittent leave when medically necessary would have a statutory obligation to make a "reasonable effort" to schedule leave so as not to disrupt unduly the employer’s operations. Previously, the employee only needed to make an "attempt."
Notably, the DOL declined to alter the requirement that employers provide intermittent leave in the smallest increment of time the employee uses to record time.
Paid Leave Substitution
The DOL proposes two substantive changes to the current regulations regarding paid leave. The first is a clarification such that the term "substitute" means to run available paid leave concurrently with unpaid FMLA leave. The second is removal of the distinction between paid medical/sick leave and vacation/personal leave in terms of an employer's ability to enforce their normal rules regarding the use of that type of leave. As proposed, an employee must abide by an employer's paid leave policies in order to substitute any form of accrued paid leave for unpaid FMLA leave.
When providing notice of FMLA eligibility, the employer must make the employee aware of any additional requirements for the use of paid leave and must inform the employee that he/she remains entitled to unpaid FMLA leave even if he/she chooses not to meet the terms and conditions of the employer’s paid leave policies.
Equivalent position and pay
The DOL proposes to drop the distinction between bonuses for job performance and bonuses predicated on the absence of occurrences (for example, perfect attendance awards). The DOL proposes language that provides that an employee who has not met a specified goal due to FMLA leave may be denied the bonus provided similarly situated employees who took non-FMLA leave were also denied the bonus.
Protection for employees who assert FMLA rights
The DOL deletes the final sentence of §825.220(d) which states that job restoration rights are available until twelve (12) weeks have passed within the twelve (12) month period, including all FMLA leave and any period where the employee performs light duty work.
Under this proposal, the employee will regain the right to reinstatement for a full twelve (12) week leave instead of having the right diminished by the amount of time spent in a light duty position. The DOL also proposes eliminating any requirement that an employee accept light duty work in lieu of taking FMLA leave.
Employer Notice to Employees
The DOL proposes guidelines which would allow an employer to satisfy the FMLA poster requirement by electronic posting on an employer's website. The employer may post on-line but not solely on an intranet. The post must be conspicuous and must be accessible by applicants and all employees.
Covered employers with eligible employees must distribute the general notice in an employee handbook or by distributing a copy to every employee annually.
Notice of Eligibility Status
The proposals require the employer to communicate eligibility status to employee after employee has provided the employer with sufficient information to indicate that the employee needs FMLA-qualifying leave. The time an employer has to notify an employee of eligibility status would be increased from two to five business days.
If the leave is denied, then the employer’s notice of denial must indicate the reasons why the employee is not eligible or that the employee has no FMLA leave available.
If the employee is eligible for leave, then the eligibility notice must also inform the employee of his/her rights and responsibilities, including the requirement that the employee provide sufficient and complete medical certification; the requirement that the employee pay premiums for continuing benefits; the employee’s job restoration rights; and the rights to substitute paid leave. The DOL also proposes that the employer include a statement of the employee’s essential job functions if the employer intends to require that these be addressed in a fitness-for-duty certification.
Employee notice requirements for foreseeable FMLA leave
Employees will have to follow stricter procedures for notifying their employers that they are taking leave, with two exceptions: emergency situations, and where the employer's policies allow less time to request leave than the FMLA permits. If the employee cannot provide at least thirty (30) days notice, then employee must respond to a request by employer to explain why it was not practicable to give thirty (30) days’ notice.
To provide sufficient notice that the leave may be FMLA qualifying, the employee does not have to mention the FMLA by name. However, the employee must indicate (1) that he/she is unable to perform the functions of the job or that a covered family member is unable to participate in regular daily activities; (2) the anticipated duration of the absence; and (3) whether the employee or family member intends to visit a health care provider or is receiving continuing treatment.
Medical Certification
The employee will have fifteen (15) calendar days to provide certification. If certification is incomplete or insufficient (one or more entries have not been completed or it is vague, ambiguous, or non-responsive), then the employee will have at least seven (7) calendar days to cure.
Failure to Provide Medical Certification
The DOL proposes an amendment to clarify that a failure by the employee to provide complete and sufficient medical certification may result in denial of FMLA coverage.
Authentication and Certification of Medical Certificate
The proposed regulations would allow employers to directly contact employees’ physicians without having to use a health care provider as an intermediary. The DOL proposes that employers be allowed to contact the health care provider directly to authenticate and clarify the medical certificate after the employee has an opportunity to cure any deficiencies. The employee must authorize release of relevant medical information related to the condition for which leave is sought. The DOL proposes that an employee who refuses to provide such permission will jeopardize his or her FMLA rights.
Recertifications
The proposals will only allow recertifications every six (6) months in circumstances where the original certificate indicates that the medical condition will last for an extended period of time.
Fitness-for-Duty Certification
The employee will be required to obtain a certificate that he/she is able to resume work. The employer may provide a list of essential job functions to the employee in its eligibility notice and may require that the health care provider certify that the employee can perform them. The employer may contact the employee’s health care provider directly to authenticate or clarify.
The proposed rules also would permit an employer to require an employee to furnish a fitness-for-duty certification every thirty (30) days if an employee has used intermittent leave during that period and if reasonable safety concerns exist.
Military Leave
On January 28, President Bush signed the Defense Authorization Act for 2008 (NDAA) which, among other things, amended the FMLA to give certain family members up to 26 weeks of leave to care for an armed services member “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.” Up to 12 weeks are provided for a “qualifying exigency” arising out of the employee’s spouse, son, daughter or parent being on active duty or being called up to active duty. Although the DOL is working on proposed rules to clarify how this amendment shall be handled by employers and employees, this amendment was effective immediately when the President signed the NDAA on January 28.
This bulletin provides a brief summary of some of the many proposed changes to the FMLA. A full copy of the proposed regulations may be found at: http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. Please call one of our employment lawyers for more detailed discussion of the changes to the FMLA and their impact on your business.
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Please contact one of our Employment Lawyers at Gordon & Rees LLP for assistance:
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