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Guest Article
(From the December 8, 2008 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)
The Department of Labor's final Family and Medical Leave Act (FMLA) regulations include numerous technical changes from the version proposed in February 2008 as well as needed guidance on the new military family leave rights enacted in 2008. The overriding purpose of the revised regulations, according to DOL, is to clarify the relative responsibilities of -- and improve communication between -- employers and employees. Employers are required to comply within 60 days -- or by January 16, 2009. 73 FR 67934 (November 17, 2008).
Military Family Leave
The most noteworthy change in the final FMLA regulations results from legislation enacted earlier this year. The 2008 National Defense Authorization Act amended FMLA to add additional leave rights for families of members of the armed forces. The regulations term these two new types of leave as: military caregiver leave and qualifying exigency leave. Generally:
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(The notice and certification requirements for the new military family leave are included within the newly consolidated general notice requirements, discussed below.)
Consolidated Notice Requirements -- New Model Forms
The regulations streamline the notice requirements and provide the following new model forms for administration of the employer's FMLA program:
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Employer Notice Requirements
Employer notice obligations have been consolidated in one section -- § 825.300 -- and are broken down into four major topics: General, Eligibility, Designation, and Consequences of Failing to Provide Notice.
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Employee Notice Requirements
Employees must provide at least 30 days advance notice -- at least verbally -- before FMLA leave is to begin if the need for leave is foreseeable and based on "an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or of a family member, or the planned medical treatment for a serious injury or illness of a covered servicemember." § 825.302. If 30 days is not practicable, notice must be given as soon as practicable.
If the timing of the need for leave is not foreseeable, the employee must provide notice of the need for leave as soon as practicable. According to the regulations:
It 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 applicable to such leave. § 825.303 (Emphasis added.) |
Where the employee fails to give timely notice the employer may delay FMLA coverage to the date that would apply if sufficient notice was given. For example, if the leave was foreseeable and 30 days notice could have been given, the employer may delay FMLA leave until 30 days after the date notice is given.
Medical Certifications
As indicated above, if the employer requires a medical certification, the employee must be notified at the time the employer provides the notice of FMLA eligibility -- i.e., generally within five business days after the employer has knowledge of the potentially FMLA-qualifying leave. The FMLA regulations include a model Certification of Health Care Provider that can be used for this purpose. (Separate versions are provided for the serious illness of the employee, and of a family member.)
The employer must allow at least 15 calendar days for the employee to provide the certification. If the certificate is incomplete or insufficient -- as defined in the regulations -- the employer must identify in writing the additional information needed and provide the employee with at least seven calendar days to cure the deficiency. § 825.305
With the employee's permission, the employer is permitted to have its own healthcare provider contact the employee's healthcare provider to clarify or authenticate the certificate. The employer's representative must be a human resource professional, a leave administrator, or a management official, but in no case may it be the employee's direct supervisor. The employer may not request information beyond that in the certification form, and any sharing of individually identifiable health information must be in compliance with the HIPAA privacy rules. Importantly, before making any contact with the employee's health care provider, the employer must provide the employee with the opportunity to cure any deficiencies in the certificate. §825.305
Certification of Qualifying Exigency & Certification of Serious Injury or Illness of Covered Servicemember
As with medical certification, an employer may request certification of a qualifying exigency or of the serious illness or injury of a covered service member when FMLA leave is taken for those reasons. The request must be made at the same time a medical certificate must be requested -- i.e., when the employer provides notice of FMLA eligibility and responsibilities (i.e., generally within 5 business days after the employer has knowledge of possible FMLA-qualifying leave). §825.300
In the case of a qualifying exigency, the employer may request a copy of the active duty orders, a description of the exigency, the beginning and end dates of the exigency, and contact information if the exigency involves a meeting with a third-party. Beyond the items enumerated in the regulations, the employer may not request additional information from the employee. However, if the qualifying exigency involves a meeting with a third party the employer may contact the third party to verify the nature and time of the meeting. §825.309 The FMLA regulations include a model Certification of Qualifying Exigency that can be used for this purpose.
In the case of leave taken to care for a covered servicemember, the employer may request certification of the serious illness or injury, as well as additional information about the servicemember and the care to be provided. The FMLA regulations include a model Certification for Serious Injury or Illness of Covered Servicemember that can be used for this purpose. In any event, an employer must accept as sufficient certification "invitational travel orders" or "invitational travel authorization" issued to any family member to join an injured or ill servicmemeber at his or her bedside. § 825.310
Other Notable Changes
The 200 pages of final FMLA regulations issued on November 17, 2008 contain various technical changes from the regulations proposed earlier this year. They of course include substantive changes from the prior FMLA regulations, which became effective in 1995. Notable changes include the following:
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See DOL's Fact Sheet, DOL's Final Rule on Family and Medical Leave, November 2008. Various information on the final FMLA regulations is available on the DOL website.
The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations.
If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Mark Neilio 202.378.5046, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Tom Veal 312.946.2595, Deborah Walker 202.879.4955. Copyright 2008, Deloitte. |
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