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David J. Middlebrooks, Albert L. Vreeland, II, Editors
Lehr Middlebrooks & Vreeland, P.C.
Vol. 18, No. 10
March 2008
FMLA REGULATIONS
The Great Compromise continues: DOL issues proposed FMLA regulations
The Family and Medical Leave Act (FMLA) was created 15 years ago to balance the competing demands of the workplace with the needs of families. The spirit of compromise is exemplified by the way the law functions on its most basic level: While
eligible employees get a specified amount of time off for covered health conditions, the time is unpaid. From its beginnings, the FMLA has been, by design, a compromise. And you know what they say about the best compromises? Everyone walks away
unhappy.
Better late than never? It depends on your perspective
On February 11, 2008, after consulting with employers and employees for six years and receiving more than 15,000 comments, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking geared at updating the 15-year-old FMLA. While
employers were hoping the proposed regulations would solve all their problems related to the abuse of leave ― and employee groups were hoping employees would receive paid leave or get an expansion of the types of absences that might be
FMLA-covered ― neither side got a windfall. The compromise continues.
The changes in the proposed regulations are primarily targeted at improving communication between workers, employers, and health care providers, addressing some confusion in the previous regulations, and dealing with a U.S. Supreme Court case that
had invalidated some of the regulations' penalty provisions. Read on to get a better idea of the primary changes set forth in the proposed regulations.
Eligibility and leave issues
Eligibility clarifications. Eligible employees currently have to be employed by the employer for at least 12 months and work at least 1,250 hours in the 12 months before leave can begin. Employers often overlook the fact that the first requirement
― that employees work for them for at least 12 months ― doesn't require the 12 months to be consecutive.
An employee could have worked for the company for five years in 1985 and come back six months before taking leave. If that employee worked 1,250 hours in those six months, he would be eligible for leave. The proposed regulations place some limits on
that "look back" period, requiring you to consider only the five years before an employee's break in service. There are exceptions for military service and certain rehire agreements that anticipate a longer break in service.
Tweaks to "serious health condition." The proposed rule retains the six individual definitions of serious health condition while adding guidance on two regulatory terms. First, one of the definitions involves more than three consecutive calendar days
of incapacity plus "two visits to a health care provider." The two visits must occur within 30 days of the period of incapacity. Second, "periodic visits" is defined for chronic serious health conditions, which is also open-ended in the current
regulations, as at least two visits to a health care provider per year.
Common ailments may be serious health conditions. Although current regulations suggest that common ailments (i.e., common cold, flu, earaches, upset stomach, minor ulcers, and headaches) aren't usually serious health conditions covered by the FMLA,
the proposed regulations clarify that those ailments can qualify for FMLA protection if they otherwise meet the definition of "serious health condition." As we've advised before, defer to the physician's certification if you're unsure.
Light duty. Time spent performing "light-duty" work doesn't count against an employee's FMLA leave entitlement. Additionally, reinstatement rights aren't affected by a light-duty assignment. You can still transfer employees to light- duty
assignments, but you can't count that time as FMLA-covered leave.
Paid or unpaid leave. FMLA leave is unpaid. The statute does provide, however, that employees may take (or you may require them to take) any accrued paid leave concurrently with any FMLA leave. That's known as the "substitution of paid leave." The
same requirements apply to the substitution of all forms of accrued paid leave.
Accordingly, under the proposed regulations, an employee may elect to use accrued paid vacation, personal leave, or paid time off concurrently with FMLA leave when he has met the terms and conditions of his employer's paid-leave policy. That also is
the case under the current regulations for the substitution of paid sick leave. Eligible employees are always entitled to unpaid FMLA leave, even if they fail to meet the employer's conditions for taking paid leave.
Note of caution to generous employers. Some employers might allow ineligible employees to take family or medical leave even if they haven't met the 12-month or 1,250-hour service requirement. In the past, employers extending leave to ineligible
employees sometimes sought to count the time on leave as part of the 12 weeks of leave required under the FMLA if the employees "crossed the eligibility threshold" while out. The proposed regulations affirm that in such cases, employees would be
entitled to their full 12 weeks of FMLA leave only after they become FMLA-eligible.
Employer notice issues
Employer notice obligations. The proposed rules consolidate all the employer notice requirements into a "one-stop" section of the regulations. That should be helpful, if only for the sake of clarity. The proposed regulations impose increased notice
requirements on employers so that employees will be better informed about their FMLA rights. The proposal also extends the time you have to send out eligibility and designation notices from two business days to five.
In addition, if you deem a medical certification incomplete or insufficient, you must return it to the employee, specify in writing what information is lacking, and give the employee seven calendar days to cure the deficiency. The DOL has
underscored the importance of employers being sure that their FMLA policies and procedures are sound so that notices are done properly on the front end. You may exercise your own rights when employees don't provide the required certifications and
other information.
The Ragsdale decision/penalties. The proposed regulations seek to address the U.S. Supreme Court's decision in the Ragsdale v. Wolverine World Wide, Inc. case as it relates to employer notice provisions. The original regulations provided that if you
failed to give notice to an employee that certain leave was designated as FMLA leave, you could be penalized by having to provide up to 12 more weeks of FMLA-covered leave. The Ragsdale decision invalidated that "categorical penalty," finding that it
was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave. The proposed regulations remove the categorical-penalty provisions and clarify that if an employee suffers individualized harm because you failed to follow the
notification rules, you may be liable.
Employee notice issues
Timing. Lack of notice of the need for FMLA leave is one of the major struggles employers face. The current regulations have been interpreted to allow some employees to provide notice up to two full business days after an absence, even if they could
have provided notice sooner. The proposed regulations provide that in most cases, an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, barring unusual circumstances.
Content. It's long been understood that employees don't have to use the magic word "FMLA" to put their employer on notice of the need for leave. Under the proposed regulations, to put employers on notice of the need for FMLA leave, employees need
indicate only:
- that they can't perform the functions of the job (or that a covered family member is unable to participate in regular daily activities);
- the anticipated duration of the absence; and
- whether they (or a family member) intend to
visit a health care provider or are receiving continuing treatment.
Employees can't, however, claim they gave notice of the need for FMLA leave simply by calling in sick without further explanation.
Medical certification process
Content and communication. The proposed regulations seek to streamline the medical certification process, allowing for direct contact between the employer and the health care provider for purposes of clarification or authenticationof a medical
certification form (so long as any applicable Health Insurance Portability and Accountability Act requirements are met). To utilize that option, you must first give the employee the opportunity to cure deficiencies in the medical certification. You
still can't ask health care providers for additional information beyond that required by the certification form.
The proposed regulations include an update of the DOL's optional Certification of a Health Care Provider form (Form WH-380) and further allow (but don't require) health care providers to provide a diagnosis of the patient's health condition as part
of the certification.
Timing of certification. You can request a new medical certification each leave year for medical conditions that last longer than 12 months. The proposal clarifies the applicable time period for recertification. Under the current regulations, you
generally can request a recertification no more than every 30 days and only in conjunction with an FMLA absence.
If a minimum duration of incapacity has been specified in the certification, however, recertification generally can't be required until the specified duration has passed. That resulted in the inability to seek recertification in many cases in which
physicians specified lengthy or perpetual "minimum durations." The proposed regulations allow you to request recertification of an ongoing condition every six months in conjunction with an absence.
Fitness-for-duty certifications. The current FMLA regulations allow you to enforce uniformly applied policies or practices that require all similarly situated employees who take leave to provide a certification that they are able to resume work. The
proposed regulations make two changes to the fitness-for-duty certification process:
- You may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of his job.
- For employees on intermittent leave, you may require a fitness-for-duty certification once every 30
days ifthe employee has actually used leave during the 30-day period and reasonable safety concerns exist.
Other issues of note
Waiver of rights. In the proposed regulations, the DOL reinforces its longstanding position that employees may voluntarily settle their FMLA claims without court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited
(i.e., you can't waive something that hasn't happened yet), but the proposed regulations would, for instance, allow you to include waivers in severance agreements of claims under the FMLA based on conduct that had already occurred at the time of
signing.
Perfect attendance awards. The proposed regulations change the treatment of perfect attendance awards to allow you to deny such an award to an employee who takes FMLA leave (and is thus absent) so long as you treat employees taking non- FMLA leave in
an identical way.
The proposed regulations are available online at www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf.
Learn all you need to know about the new FMLA regs by listening to the audio conference "DOL's New Proposed FMLA Regs Explained" on March 19. To register or for more information, contact customer service at (800) 274-6774.
Copyright 2008 M. Lee Smith Publishers LLC
The Alabama State Bar requires the following disclosure: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers."
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