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Relearning FMLA

Relearning FMLA | Human Resource Executive Online It's out with the old and in with the new, as updated FMLA regulations go into effect. In the first of two columns on the subject, we look at the changes in definitions and eligibility, including the expansion of FMLA rights for military families and an extended timeframe for making FMLA decisions.

Monday, January 26, 2009
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As expected, one of the first big-ticket employment developments of 2009 was the Department of Labor's enactment of its new Family and Medical Leave Act regulations on Jan. 16. Because FMLA compliance has plagued many an employer during its 15-year existence, and because this column consistently receives numerous reader questions on the topic, we have decided to dedicate this and next month's column exclusively to the FMLA.

Part 1 of this FMLA series is a 2009 FMLA Primer. In next month's column, we will address some of your FMLA-related questions.

Overview of the New FMLA Regulations

Under the Family and Medical Leave Act, eligible employees (i.e., employees who work at facilities that employ at least 50 workers within a 75-mile radius of the worksite, have been employed for at least 12 months, and have worked at least 1,250 hours during the 12-month period) are entitled to receive 12 workweeks of job protected unpaid leave for certain qualifying absences. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934 (Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825).

Prior to the passage of the National Defense Authorization Act of 2008, which expanded the FMLA significantly to include military family-leave provisions, the only absences protected under the FMLA were for:

* The birth of the employee's son or daughter;

* The placement of a child with the employee for adoption or foster care;

* To care for the employee's spouse, parent, son, or daughter with a serious health condition; or

* If the employee is unable to work because of his or her own serious health condition.

The FMLA now covers more types of leave situations that it had covered in years past. The DOL's new regulations -- which reflect the DOL's review and response to more than 4,600 public comments to its 2008 Notice of Proposed Rulemaking and some 15,000 public comments submitted in reply its 2006 Request for Information -- provide needed guidance for implementing the military-leave provisions enacted by the NDAA, and respond to case law invalidating certain provisions of the DOL's former regulations.

HR professionals should obtain a copy of the new regulations and review them carefully. However, here's my CliffsNotes version of highlights from current regulations.

Serious Health Condition:

* The new regulations essentially retained the previous definition of "serious health condition." They also defined that "continuing treatment" for establishing a "serious health condition" requires that the employee have two (2) or more visits to a healthcare provider within 30 days of the first day of incapacity. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67946 (to be codified at 29 C.F.R. pt. 825.115(a)).

Further, the first in-person visit to a healthcare provider must occur within seven days of the first day of incapacity. Id. at 68079. The period of time to establish "incapacity" remains more than three consecutive full calendar days. Id. at 67947.

* The new regulations clarify that a "serious health condition" also covers chronic conditions that require periodic visits to a healthcare provider for treatment. Periodic is defined as at least twice a year.

* The new regulations maintain a broad definition of what is not a "serious health condition" -- "ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, ... etc., are examples of conditions that do not meet the definition of a serious health condition." Id. at pt. 825.113(d).

Expanded Rights for Military Families:

* "Next of kin" relatives -- which can include grandparents, aunts, and uncles -- of injured members from any branch of the Armed Forces are eligible to take up to 26 weeks of job protected leave when the injury is incurred in the line of duty.

The caregiver can only take the leave once per injury, but multiple family members can take the leave to care for the incapacitated service member. Family and Medical Leave Act of 1993, 73 Fed. Reg. 68084-68085 (to be codified at 29 C.F.R. pt. 825.127(a)-(c)).

* An employee may request FMLA leave for a "qualifying exigency" stemming from the active duty, or impending call or order to active duty of the employee's spouse, son, daughter, or parent. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67954 (to be codified at 29 C.F.R. pt. 825.126). However, this provision only applies to employees with family members in the National Guard or Reserves, not the regular Armed Forces. Id. at 67955.

The regulations contain a list of qualifying exigencies, such as short-notice deployments, military events, financial and legal arrangements, childcare and school activities, rest and recuperation. Id. at 67957.

Employee Rights & Responsibilities to Employers:

* An employee giving notice of the need for FMLA leave does not need to expressly state that they are taking time away from work under the FMLA, but needs only state a qualifying reason for the leave. However, if the employee fails to state a reason, the leave may be denied. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68098 (to be codified at 29 C.F.R. pt. 825.301(b)).

* There are two types of FMLA leave: foreseeable and unforeseeable.

An employee must give 30 days' notice for foreseeable leave. If the employee gives less than that, the employee must respond to a request from the employer to explain the failure to provide the full 30 days and the employer may be able to delay protected leave depending on the facts of the case. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68098-68100 (to be codified at 29 C.F.R. pt. 825.302 & 825.304).

An employee must give notice "as soon as practicable under the facts" for unforeseeable leave. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68099 (to be codified at 29 C.F.R. pt. 825.303). The regulation notes that "[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements." Id. "For example, an employer may require employees to call a designated number or a specific individual to request leave." Id. at 68100.

It is important to note that if the employee is sick or incapacitated, a representative may notify the employer. Id. at 68099. Again, the failure to comply with an employer's notice requirements, absent unusual circumstances, may result in the FMLA leave being delayed or denied. Id.

* Leave following the birth of a healthy child must be completed within one year from the birth. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67949 (to be codified at 29 C.F.R. pt. 825.120(a)2).

* Husbands and wives working for the same employer are only granted a combined 12 weeks of leave; however, both spouses may each take 12 weeks to care for a child with a serious health condition. Id. at 67949-67950.

* The new regulations clarify that an employee seeking leave to care for a sick family member need not be the only one available to provide care. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67953 (to be codified at 29 C.F.R. pt. 825.124).

* Employees seeking intermittent leave for planned medical treatment have an obligation to schedule the treatment at a time that will not unduly disrupt the employer's operations. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67974 (to be codified at 29 C.F.R. pt. 825.203).

Employer Rights & Responsibilities to Employees:

* Employers may require an employee's leave to care for a covered family member with a serious health condition, or the employee's own serious health condition, be supported by a certification provided by the treating health care provider. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68100 (to be codified at 29 C.F.R. pt. 825.305).

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In addition, employers may contact the treating healthcare provider to clarify or authenticate an FMLA certification. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 681062 (to be codified at 29 C.F.R. pt. 825.307).

Finally, employers may request recertification every 30 days, unless a specific period of time is designated in the initial certification (if a period of time is specified, then re-certification may be requested after the period elapses). The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68103 (to be codified at 29 C.F.R. pt. 825.308). Employers may also ask for re-certification if the employee seeks to extend the leave. Id.

* Under the new regulations, covered employers must post FMLA notice materials, even if no employees are eligible for FMLA leave. In addition, if there are eligible employees, the employer must distribute the general notice directly to the employees. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68096 (to be codified at 29 C.F.R. pt. 825.300(a)(3)). The general notice may be included in an employee handbook, or distributed to each new employee at the time of hire. Id.

* If an employer's workforce is comprised of a significant portion of non-English speakers, the general notice must be posted in the employees' language. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68096 (to be codified at 29 C.F.R. pt. 825.300(a)(4)).

* When an employee requests FMLA leave, or when the employer acquires knowledge that the leave may be for a qualifying reason, the employer must notify of the employee within five business days regarding the employee's FMLA eligibility.

In other words, employers must make a decision about a request for FMLA leave within five business days. Under the old regulations, notice was mandated within only two days. Again, employers must translate the notice form if a significant portion of the workers speak a language other than English. The Family and Medical Leave Act of 1993, 73 Fed. Reg. 68096 (to be codified at 29 C.F.R. pt. 825.300(b)(2)).

* Also, if the employer determines that the requesting employee is not eligible for FMLA leave, the notice to the employee must provide at least one reason why the employee is not eligible. Id.

* Additional information that employers must provide to employees includes: whether the employer requires paid leave to be substituted for unpaid leave; whether the employee must complete a fitness-for-duty certification prior to returning to work; the number of hours, days, weeks that will be designated as FMLA leave, if possible to determine; whether the employee will be required to provide certification of a serious health condition, serious injury, or illness; and whether the employee will need to make any premium payments to maintain health benefits. Id. at 68096-97.

The following FMLA forms accompany the new regulations and can be obtained through the DOL's Web site:

* WH-380-E: Certification of Health Care Provider for Employee's Serious Health Condition

* WH-380-F: Certification of Health Care Provider for Family Member's Serious Health Condition

* WH-381: Notice of Eligibility and Rights & Responsibilities

* WH-382: Designation Notice

* WH-384: Certification of Qualifying Exigency For Military Family Leave

* WH-385: Certification for Serious Injury or Illness of Covered Servicemember - - for Military Family Leave

Clearly, FMLA compliance can be very tricky, and with the enactment of the new regulations, we can expect that the DOL is upping the ante with respect its enforcement efforts. Therefore, so as to best avoid having to defend against these costly lawsuits, employers should always consult with legal counsel to make sure that they are properly handling their FMLA-related issues.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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