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Guest Article

Deloitte logo

(From the December 8, 2008 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Final FMLA Regulations Are Issued: Employers Must Comply By January 16, 2009

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:

  • Military Caregiver Leave became effective January 28, 2008 and provides eligible employees who are spouses, children, parents or next of kin, with up to 26 weeks of leave in a 12-month period to care for a service member recovering from an illness or injury sustained in active duty. This leave is in addition to that otherwise permitted under FMLA, but an employee's combined total annual FMLA leave entitlement will not exceed 26 weeks. The FMLA regulations clarify that, for purposes of military caregiver leave, the "need to care for" includes psychological as well as physical care. § 825.124

  • Qualifying Exigency Leave will become effective with the final FMLA regulations -- on January 16, 2009 -- and allows eligible employees whose spouse, children or parents have been called to active duty with up to 12 weeks of FMLA leave for any related "qualifying exigency." The FMLA regulations define "qualifying exigency" to include attending military events related to the call to active duty, arranging for childcare, attending school activities, making financial or legal arrangements, attending counseling, spending time with a covered military member on short-term temporary rest or leave, attending post-deployment activities, etc. § 825.126

(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:

  • Certification of Health Care Provider for Employee's Serious Health Care Condition
  • Notice to Employee of Rights under FMLA
  • Notice of Eligibility and Rights & Responsibilities
  • Designation Notice
  • Certification of Qualifying Exigency for Military Family Leave
  • Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave

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.

  • General: The general notice -- e.g., the Notice to Employee of Rights under FMLA -- can now be posted electronically. Civil penalties for failure to post the notice have increased from $100 to $110. The notice must also be provided to the employees by distributing it -- either in hard copy or electronically -- in an employee handbook or in other written guidance concerning employee leaves or by distributing a copy to each new employee upon hire.
  • Eligibility: When the employer acquires knowledge that an employee's leave may be for FMLA-qualifying reasons it must provide notice orally or in writing to the employee of his or her eligibility to take FMLA leave within five business days, absent extenuating circumstances. Notice must also be given in hard copy or electronically of the specific obligations of the employee and the consequences of failing to meet those obligations (e.g., the requirement to submit certification of a serious health condition, certification of a qualifying exigency, or certification for serious illness of a covered servicemember). The Notice of Eligibility and Rights & Responsibilities may be used for this purpose.
  • Designation: When the employer has enough information to make a determination, it must notify the employee within five business days, absent extenuating circumstances, whether the leave will be designated and counted as FMLA leave. If the employer requires paid leave to be substituted for FMLA leave -- or if a fitness for duty certificate will be required to restore employment -- the employee must be notified at this time. The employer must also provide the amount of leave counted against the employee's FMLA leave entitlement. The Designation Notice may be used for this purpose.
  • Consequences of Failing to Provide Notice: Categorical penalties for failure to comply with the notice requirements have been removed. However, the regulations state that an employer may be liable for losses sustained by an employee as a result of the employer's failure to comply with the FMLA requirements.

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:

  • Eligibility: Employment before a 7-year continuous break in service will be excluded in determining whether an employee has been "employed by the employer for at least 12 months" so as to be eligible for FMLA leave. In applying the 7-year cut-off, special counting rules apply where the break is occasioned by a military service obligation, or an agreement exists to rehire the employee. § 825.110
  • Light Duty: An employee who voluntarily performs light duty is not on FMLA. The employee's right to restoration is held in abeyance during the light duty period. Preambles to § 825.125
  • Waiver of Rights: Employees cannot prospectively waive FMLA rights, although they can release or settle FMLA claims. § 825.220
  • Serious Health Condition: A serious health condition exists if the individual suffers three consecutive days of incapacity and has "two visits" to a health care provider. Final FMLA regulations make clear that the two visits must occur within 30 days of the beginning of the incapacity and the first visit must occur within 7 days. Another definition of serious health condition is where the individual suffers three consecutive days of incapacity and has a "regime of continuing treatment." Final FMLA regulations make clear that the first visit must occur within 30 days of the beginning of the incapacity. Final FMLA regulations also make clear that "periodic visits" for chronic serious health conditions means at least two visits per year. § 825.115
  • Substitution of Paid Leave: Employees electing to use any type of paid leave in lieu of unpaid FMLA leave must follow the same terms and conditions as other employees using such leave. § 825.207
  • Perfect Attendance: Employers can deny a perfect attendance award to employees who do not have perfect attendance because of taking FMLA leave, as long as employees taking non-FMLA leave are treated the same way. § 825.215
  • Medical Certification: Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers can request recertification of an ongoing condition every six months in conjunction with an absence. §§ 825.305 & 825.308
  • Fitness for Duty: Employers may require that the fitness-for-duty certification specifically address the employee's ability to perform the essential functions of the employee's job. Also, where reasonable safety concerns exist, employers may request a certification before the employee returns to work from intermittent leave. § 825.300

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.

Deloitte logoThe 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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