Final FMLA Rule Is Published By Department of Labor
The first revision to the Family and Medical Leave Act regulations since enactment of the 1993 law was published by the Department of Labor’s Wage and Hour Division (DOL) in the Federal Register on Monday, November 17, 2008.
The FMLA allows eligible employees a total of 12 weeks of job-protected, unpaid leave during the year to care for a newborn or sick child, spouse or parent, or to recover from their own serious health condition.
According to the DOL, the final rule (29 CFR Part 825) will help workers and their employers better understand their rights and responsibilities under the Act, and also will speed implementation of the new military family leave entitlements. The revisions address the definition of “continuing treatment” of a serious health condition, notice obligations for employers, and employee notice rules and certification requirements. The final rule also contains changes that reflect Supreme Court and lower court rulings.
Significantly, the final regulations implement the new military leave provisions in the National Defense Authorization Act for FY 2008, signed into law in January 2008. The Act now provides job-protected leave rights to employees who care for covered servicemembers with a serious injury or illness, or who face “qualifying exigencies” because a covered military member is on active duty or has been notified of an impending call or order to active duty.
The final rule is the product of a two-year rulemaking process in which the DOL received some 20,000 public comments, according to Victoria A. Lipnic, Assistant Secretary for the DOL’s Employment Standards Administration.
A brief summary of the key rule changes is provided below.
Military provisions. The revised rule reflects the statutory expansion of FMLA for military families. Military caregiver provisions expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members may take up to 26 workweeks of leave in a 12-month period.
In addition, the FMLA now allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs, for “qualifying exigency” leave. The new rule defines “qualifying exigencies” as: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities where the employer and employee agree to the leave.
These new military family leave requirements are incorporated into the general, non-military FMLA leave provisions, reflecting the DOL’s view that the procedures used when taking military family leave should be the same as those used for other types of FMLA leave whenever possible. However, the DOL has created four new regulatory sections (§§ 825.126, 825.127, 825.309 and 825.310), which address specific employee and employer responsibilities for purposes of military family leave.
Conforming to Ragsdale. The updated rule now conforms to the Supreme Court’s decision in Ragsdale v Wolverine World Wide Inc (USSCt 2002, 122 SCt 1155, 145 LC ¶34,457). Ragsdale held that a penalty provision in the FMLA rules, which required an employer who failed to comply with its notification obligations to provide 12 additional weeks of FMLA-protected leave after an employee had already taken 30 weeks of leave, was inconsistent with the statutory mandate of 12 weeks of FMLA leave and was contrary to the law’s remedial requirement that an employee demonstrate individual harm. The revised rule removes this penalty provision.
However, the DOL notes that if an employer fails to follow the required eligibility notification rules or provides incorrect information to employees, that failure may have the effect of interfering with, restraining or denying an employee’s exercise of FMLA rights. Where individual harm to the employee results, the employee may have statutory remedies.
“Serious health condition.” Despite receiving many comments from employers and employer groups concerned over what they believed to be an overly broad definition of “serious health condition,” the DOL retained the existing definitions, concluding there was no alternative definition that could address these concerns without improperly excluding the types of conditions that Congress intended to be FMLA-protected. The final rule provides a list of common ailments, such as colds and flu, which the DOL believes will be helpful to identifying ailments that ordinarily will not qualify for FMLA leave because they generally will not satisfy these regulatory criteria.
Period of incapacity. One definition of “serious health condition” is three consecutive full days of incapacity requiring two visits to a health care provider. The final rule clarifies that, under this definition, an employee must make an initial visit to a health care provider within seven days of the day on which the incapacity begins. Moreover, the two visits to a health care provider must occur within 30 days of the period of incapacity. The health care provider, and not the employee or the patient, must make the determination as to whether a second visit during the 30-day period is needed.
The DOL declined to adopt a “work day” or “business day” test for defining a minimum period of incapacity, concluding that the current provision of “more than three consecutive calendar days” measures the severity of an illness better than a test based on days absent from work. However, the final rule states that the period of incapacity must be more than three consecutive, “full” calendar days in order to clarify that the “calendar day” test cannot be met by partial days.
Continuing treatment. To qualify as a chronic serious health condition, the employee must make at least two visits to a health care provider per year. The DOL determined that the need for two treatment visits per year is a reasonable indicator that the chronic condition is a serious health condition, and that this requirement strikes a reasonable balance between no minimum frequency at all (as urged by many employee groups) or four or more times per year (as suggested by many employer groups). The determination of whether two treatment visits per year are necessary is a medical determination to be made by the health care provider. “Two visits per year” is not the sole criterion for determining a covered chronic serious health condition, however, as the DOL notes.
Employer notice requirements. Notice requirements have been consolidated into one comprehensive “one-stop” section. Employers are required to provide employees with four different types of notices: general notices, eligibility notices, rights and responsibilities notices, and designation notices. Among the highlights of the new notice provisions:
- Employers with eligible employees need to distribute to employees the same general notice that they post. This notice may be included in the employee handbook or distributed to employees when they are hired.
- Employers must provide employees with a notice indicating eligibility or ineligibility to take FMLA leave, generally within five business days (up from two business days) after the employee either requests leave or the employer learns that the employee’s leave may be FMLA-qualifying. If an employee is not eligible for FMLA leave, the notice must include at least one reason why the employee is ineligible.
- Employers must furnish a “rights and responsibilities” notice each time the eligibility notice is provided.
- Employers have more time to notify an employee that leave has (or has not) been designated as FMLA leave —five business days once the employer has sufficient information to make such a determination.
As part of its update, the DOL created new prototype notices, which are included in the appendices of the regulations. The new rules also allow for electronic posting and distribution of some notices.
Employee notice requirements. Calling in “sick,” without providing more information, will not be considered sufficient employee notice to trigger an employer’s FMLA obligations. The final rule modifies a provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rule, the employee must follow the employer’s normal and customary call-in procedures, unless there are unusual circumstances.
As under the prior rules, an employee generally is not required to expressly assert his or her rights under the FMLA or even mention the FMLA, but instead must provide sufficient information to make the employer aware that FMLA rights may be at issue. Where an employee is seeking leave for a previously-certified FMLA condition, or for which the employee has previously taken FMLA leave, the new rules do require the employee to specifically reference the particular reason for leave or the need for FMLA leave.
Medical certification. The prior rules stated that, if a less stringent certification standard is used under the employer’s sick leave plan, only that lesser standard may be required where paid leave is substituted for FMLA leave. This provision is stricken from the new rule, since it conflicted with the employer’s statutory right to require an employee to substantiate the need for FMLA leave due to a serious health condition.
Employers have five business days (up from two days) in which to request medical certification after receiving notice of an employee’s need for FMLA leave. Employees are required to provide medical certification within 15 days after leave is requested in all cases of FMLA leave, including foreseeable leave. (Previously, the rules allowed for medical certification to be provided prior to commencement of foreseeable leave.) Under the final rule, employees must be provided additional time to provide certification —or to cure any defects in their certification —if the employee is unable to comply with the 15-day time frame despite diligent efforts.
The final rule also allows for employers to require annual medical certification where an employee’s serious health condition extends beyond a single year.
Burden on employee. The new rules expressly state the employee’s burden to provide complete and sufficient certification, and the consequences for the employee’s failure to do so. An employer may “deny” FMLA leave until the required certification is provided. (Previously, the rule stated an employer may “delay” leave.)
Incomplete certification. Employers are not required to notify employees if medical certification has not been received. However, if an employer receives a certification that is deficient or incomplete, the employer must notify the employee in writing and explain what additional information is necessary to perfect certification. Employees are to be given seven days in which to provide the additional information.
Content of certification. Provisions describing the information necessary for a complete certification are revised in the final rules to allow that a health care provider may provide a diagnosis, but a diagnosis may not be required. In addition, an employer may require that the medical certification specify whether an employee is able to perform the essential functions of the employee’s job. The employer may provide a list of essential job functions when it requires such certification. Moreover, certification for intermittent or reduced leave must include information confirming that such leave is medically necessary. Employers also may require the health care provider’s specialization to be included in the certification.
Contacting health care providers. An employer is allowed, under the final rules, to contact an employee’s health care provider directly in order to obtain information required for certification. The provision restricts who may contact the health care provider, though, and bans an employee’s direct supervisor from making such contact. Moreover, an employee may not be required to provide an authorization, release, or waiver permitting the employer to contact their health care provider directly. Any contact with health care providers must conform to the requirements of the HIPAA Privacy Rule.
Foreign health care providers. The final rule provides that employees must provide a written translation of any medical certification that is completed in a language other than English.
Recertification. The new rules allow an employer to request recertification of an ongoing condition every six months. Such recertification applies to conditions where the minimum duration of the condition exceeds 30 days. In instances of long-term serious health conditions, the new rules expressly allow an employer to provide the health care provider with information about the employee’s record of absences to inquire whether such absences are consistent with the serious health condition in question.
Fitness for duty. Employees have the same obligation to provide certification of fitness-for-duty upon return to work following FMLA leave as upon initial certification for leave. Under the new rules, employers may require that the certification specifically confirm that the employee is able to perform the essential functions of the employee’s job. However, the employer must inform the employee that it will require fitness-for-duty certification at the time it notifies the employee that it is designating the employee’s leave as FMLA leave. If the employer wants the certification to confirm that the employee is able to perform the essential functions of the employee’s job, it must provide the employee with a list of the essential job functions upon giving designation notice as well.
If reasonable job safety concerns exist, and if uniformly applied to all leaves, an employer may require a fitness-for-duty certification before an employee returns to work after taking intermittent FMLA leave.
Leave increments unchanged. The final regulations retain, with clarifications, the proposed rules on how to count increments of leave in cases of intermittent or reduced schedule leave. The employer must account for such leave “using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.” Employers may choose to use a smaller increment to account for FMLA leave than they use to account for other forms of leave, but they may not use a larger increment for FMLA leave. In addition, employers cannot account for FMLA leave in increments of greater than one hour, even if such increments are used to account for non-FMLA leave.
The DOL also has modified the final rule to recognize policies that account for use of leave in different increments at different points in time, thus permitting employers to maintain a policy that leave of any type may only be taken in a one-hour increment during the first hour of a shift (i.e., a policy intended to discourage tardy arrivals).
Physical impossibility exception. Where it is physically impossible for an employee using intermittent or reduced schedule leave to begin or end work mid-way through a shift, such as a flight attendant or railroad conductor, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement.
Substitution of paid leave. Under the final rules, employees may choose to substitute accrued paid leave for FMLA leave. The employee must follow the terms and conditions of an employer's paid leave policy to substitute any form of accrued paid leave. Employers must notify employees of any additional requirements for the use of paid leave. This information must be included with the rights and responsibilities notice.
Overtime hours not worked. The DOL has added a provision that was not in the proposed rules regarding overtime hours. If an employee would normally be required to work overtime, but cannot do so because of an FMLA-qualifying condition, the employee may be charged FMLA leave for the hours not worked.
Holidays. The final rules clarify that when an employee uses FMLA leave in increments of less than one week, the holiday will not count against the employee's FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
“Light duty” assignments. The final rules clarify that employers may not require employees to accept light duty work in lieu of taking FMLA leave. Time spent in a light duty assignment does not count against an employee’s leave entitlement. In addition, acceptance of a light duty assignment does not waive the employee’s right to be restored to the same (or an equivalent) position held when the FMLA leave began. To address commenters’ concerns that this right to restoration could extend for an indefinite period, the final rule provides that an employee’s right to restoration while in a light duty assignment expires at the end of the 12-month period the employer uses to calculate FMLA leave.
Eligibility, break in service. The final rule allows for a seven-year gap in service in order for an employee’s prior employment to count toward the 12-month employment requirement for determining eligibility for leave. The service gap was extended from a proposed five years to seven years, taking into account comments noting that employees sometimes take extended leaves from the workforce to raise children or to care for ill family members and emphasizing that women are particularly likely to fill this role.
Gap due to military service. The final rule also adopts the two exceptions to the cap for breaks in service resulting from an employee’s fulfillment of National Guard or Reserve military service obligations and breaks where a written agreement exists concerning the employer’s intention to rehire the employee after the break in service. The final rule also includes the proposed provisions regarding counting the time an employee would have worked for the employer but for the employee’s fulfillment of National Guard or Reserve military obligations toward the 12-month and 1,250-hour requirements.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that service members who conclude their tours of duty and are reemployed by their employer must receive all benefits of employment that they would have obtained if they had remained continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. Therefore, the Department believes that USERRA requires this outcome.
Perfect attendance awards. Under the final regulations, employers may deny perfect attendance awards to employees who did not have perfect attendance because they took FMLA leave, as long as employees on other types of leave are treated in the same way.
Joint employer coverage. The final rule adds a new paragraph to clarify whether professional employer organizations (PEOs) are to be considered joint employers under the FMLA. PEOs that contract with clients merely to perform functions such as payroll and benefits administration are not joint employers with their clients; however, where the PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work they perform, the PEO is a joint employer. The final rule provides that the “economic realities” test is to be used to determine whether a PEO is a joint employer.
Employee’s worksite. Covered employers under the FMLA are those who employ at least 50 people working within a 75-mile radius. In determining employee worksites for purposes of counting them in order to determine employee eligibility, the worksite of a jointly employed employee is the primary employer’s office from which the employee is assigned or reports “unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee’s worksite is that location.” after one year at the fixed worksite, the employee’s worksite for purposes of determining employee eligibility is the actual physical place where the employee works, rather than the primary employer’s office from which the employee is assigned. However, employees who work out of their home do not have their personal residence as their worksite; rather, they are considered to work in the “office to which they report and from which assignments are made.”
Pregnant spouse. The final rules clarify that a “husband” is entitled to FMLA-protected leave if he is needed to care for his spouse who is incapacitated due to her pregnancy The wording of this provision has been changed from “father” to “husband” to clarify that FMLA leave to care for a pregnant woman is available only to a spouse and not, for example, to a boyfriend or fiancé who is the father of the unborn child.
Waiver of FMLA rights. The final regulations clarify the Labor Department’s long-held position that employees may choose to waive any FMLA claims based on past conduct by an employer, whether or not such claims have been filed or indeed are even known to the employee as of the date of signing a settlement or severance agreement containing such a waiver. In contrast, employees may not waive prospective rights under the FMLA.
Interaction with other laws. The DOL has removed examples from the final rule that may have improperly implied that the Wage and Hour Division played a role in enforcing state or local family and medical leave laws. The change has no substantive legal effect but only seeks to clarify that the DOL is responsible for administering the FMLA only, while state and local governments enforce the laws for which they are responsible.
The final rule also includes a discussion of the interaction between USERRA and the FMLA and incorporates a guidance memorandum on this matter.
However, despite considerable input from employers and employer groups expressing the frustration posed in complying with both the FMLA and the Americans with Disabilities Act (ADA) in administering employee leave, the DOL concluded this burden could not be alleviated by implementing FMLA rule revisions, and the final rule makes no such regulatory changes.
Definitions. The final rule adopts the definitions section, §825.800, as proposed, except where changes were made to conform the definitions to changes in other sections of the final rule. Specifically, due to the implementation of the NDAA provisions for military leave, the final rule changes the proposed definitions of the terms “continuing treatment” and “serious health condition.”
The final rule is to take effect 60 days from publication in the Federal Register, or January 16, 2009.
The full text of the final rule, including revised agency forms and a summary of public comments received, can be found at: hr.cch.com/cases/FMLA_Rule.pdf EXE: http://www.hr.cch.com/cases/FMLA_Rule.pdf.
Reprinted with permission. © CCH