10 key changes in new FMLA regulations

November 24, 2008

Excerpted from Federal Employment Law Insider written by attorneys at the law firms of McGuireWoods LLP and Fortney & Scott, LLC

by Susan M. Webman

After a two-year process that involved the review of nearly 20,000 comments, the U.S. Department of Labor (DOL), on November 17, 2008, published its first significant overhaul of the Family and Medical Leave Act (FMLA) regulations since the law was enacted in 1993. The DOL’s changes or decisions not to change a regulation stem from courts’ interpretations of particular regulations and the comments. The final rule also specifies how to implement the January 2008 amendment to the Act providing military family leave benefits. In addition, the rule reorganizes the regulations. The rule becomes effective January 16, 2009.

While for the most part the regulations cover traditional and military family leave separately, there are certain areas where the procedures to implement the statute’s rights and obligations -- those that are new and those that haven’t changed -- are the same or similar. Those areas are cross-referenced within the relevant regulations. The DOL also revised or created new certification forms that may be used for the certification requirements regarding the use of traditional and military family leave.

Audio Conference: Understand the New FMLA Regulations: What Changes on January 16

Changes affecting traditional FMLA leave
The Ragsdale fix. One important change involves the "categorical penalty" provision of the prior regulations, which the U.S. Supreme Court invalidated in its 2002 decision in Ragsdale v. Wolverine World Wide, Inc. The regulatory penalty for an employer failing to properly designate FMLA leave was to provide the employee with 12 more weeks of FMLA leave, even after he had used the standard 12 weeks of leave. The Court relied on the statutory language and held that the regulation wasn’t consistent with the statutory limitation of 12 weeks and failed to require that there be individual harm before applying a penalty. This case led other courts to make similar decisions regarding such categorical penalties in other respects as well. The final rule removed all references to "categorical" penalties.

Employee waiver of FMLA rights. The DOL’s long-standing position has been that employees may voluntarily settle or release FMLA claims without court or department approval. A court recently interpreted the DOL’s regulations as prohibiting employees from waiving their rights to FMLA leave, either prospectively or retroactively. The final rule clarifies the department’s position, noting that only prospective waivers of FMLA rights continue to be prohibited.

Serious health condition. The final rule doesn’t change the six individual definitions of a "serious health condition" but does provide additional timelines with regard to making visits to a health care provider.

The current FMLA regulations provide that a serious health condition involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The final rule specifies that the employee must visit the health care provider within seven days after the first day of the incapacity.

That comports with the DOL’s decision regarding the requirement that there be "two visits to a health care provider" when a serious health condition exists. There is no definitive timing for these visits under the current regulation. In response to a court decision imposing its own deadlines, the final rule requires that the first visit occur within the first seven days and the latter visit within 30 days of the beginning of the period of incapacity.

The definition that requires an employee to make "periodic visits" for chronic serious health conditions is now more specific: An affected employee must make at least two visits to a health care provider per year. The DOL advised that the definition is intended to prohibit an employer from imposing a more stringent requirement.

Audio Conference: FMLA Intermittent Leave: What the New Regulations Change and What Stays the Same

Substitution of paid leave for unpaid FMLA leave. The statute provides that employees may choose to take accrued paid vacation, personal, family, or medical or sick leave concurrently with any FMLA leave. It also allows employers to require employees to take paid leave. Currently, the DOL has had different procedural requirements for using family leave, medical or sick leave, or vacation or personal leave. The final rule provides that all forms of employer-paid leave will be treated the same as they would be for any employee wishing to take that particular form of paid leave. Therefore, an employee who wants to substitute paid leave for unpaid FMLA leave must follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave.

If an employer allows exceptions to its policy for other employees, it would have to do the same for employees taking FMLA leave. There is no requirement that an employer allow for such variances, however. An employer is obligated to provide unpaid FMLA leave if the employee doesn’t meet its conditions for taking paid leave and may waive any procedural requirements for taking any type of paid leave.

Light duty. Under the final rule, time spent performing “light duty” work doesn’t count against an employee’s FMLA leave entitlement, and the employee’s right to restoration is held in abeyance while he performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light-duty assignment, he isn’t on FMLA leave.

Employer notice obligations. The final rule combines the various employer notice requirements into one section of the regulations and resolves inconsistencies that exist with regard to current provisions and designated time periods. Employers will be required to provide employees with a general notice about the FMLA (through a poster and either in an employee handbook or upon hire), an eligibility notice, a rights and responsibilities notice, and a designation notice. The final rule also allows employers additional time to provide various notices -- from two business days to five business days.

New FMLA federal poster and free temporary FMLA military leave poster

Employee notice of the need for FMLA leave. The final rule requires that, absent unusual circumstances, an employee must follow the employer’s usual and customary call-in procedures for reporting an FMLA leave absence. The current regulation has been construed to allow employees to provide their employer with notice of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice sooner. Employers have pointed to the lack of advance notice as one of the more disruptive results of the current regulations. The rule doesn’t change the penalties that can be imposed for failure to provide notice.

Perfect attendance awards. Both employees and employers have complained that it was unfair to require an employer to award a perfect attendance award when an employee had taken FMLA leave during the relevant period. The final rule allows employers to deny this award so long as they treat employees taking non-FMLA leave in an identical way. This conforms with the nondiscriminatory requirements of the statute.

FMLA Compliance Manual: Practical Solutions for HR

Medical certification process. The final rule made significant regulatory changes to the medical certification process. Factoring in privacy concerns and the enactment of the Health Insurance Portability and Accountability Act in 1996, which postdated the current regulations, the DOL revised the regulations as follows:

• Employers’ representatives contacting the employee’s health care provider must be a health care provider, HR professional, leave administrator, or management official, but they can’t be the employee’s direct supervisor.
• Employers may ask health care providers only for information required by the certification form.
• Employers that believe a medical certification is incomplete or insufficient must specify in writing what information is lacking and then give the employee seven calendar days to fix the deficiency.
• The final rule allows (but doesn’t mandate) the health care provider to give a diagnosis of the patient’s health condition as part of the certification.
• The DOL created separate optional medical forms for the employee and covered family members.

Audio Conference: FMLA Notice and Medical Certification: How to Comply with New Regs

The regulations provide the following time periods for recertification:

• Employers may request a new medical certification each leave year for medical conditions that last more than one year.
• Employers may request recertification of an ongoing condition every six months in conjunction with an absence. (Under current regulations, employers may generally request a recertification no more than every 30 days in conjunction with an FMLA absence, except when a minimum duration of incapacity has been specified in the certification, in which case recertification generally may not be required until that duration has passed.)

HR Hero article: Final FMLA regs provide detail on leave for military families

Fitness-for duty certifications. The final rule states that when reasonable job safety concerns exist, an employer may require an employee taking intermittent leave to provide a fitness-for-duty certification before returning to work. The rule also allows an employer to require any fitness-for-duty certification to specifically address the employee’s ability to perform the "essential functions" of his job.

Some states have family and medical leave laws that provide that employers must follow in addition to the federal FMLA. Businesses can learn how their state's laws interact with the FMLA and what they are required to do to comply in State-Specific Family and Medical Leave Act Seminars conducted by employment attorneys in their state who are members of the Employers Counsel Network.

You can find more iinformation about your state's leave laws and other employment laws in 50 Employment Laws in 50 States.

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Copyright 2008 M. Lee Smith Publishers LLC. FEDERAL EMPLOYMENT LAW INSIDER . FEDERAL EMPLOYMENT LAW INSIDER does not attempt to offer solutions to individual problems but rather to provide information about current developments in federal employment law. Questions about individual problems should be addressed to the federal employment law attorney of your choice.

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