On November 17, the Department of Labor (DOL) issued final regulations for the Family and Medical Leave Act of 1993 (FMLA). These new regulations, slated to take effect on January 16, 2009, constitute the first major regulatory changes to the FMLA since its enactment 15 years ago. These new regulations alter many current FMLA procedures, as well as incorporate the military family leave entitlements enacted under the National Defense Authorization Act of 2008 (NDAA). Significant sections of the 750+ page Department of Labor document are summarized below. We will also host a National Web Seminar on December 4, 2008, concerning the new regulations (see link below to register).

Military Exigency Leave
Under the NDAA, an employee may take FMLA leave for a “qualifying exigency” that arises from the employee’s spouse, son or daughter (of any age), or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. This type of leave does not extend to family members of the Regular Armed Forces on active duty status. The leave also only applies to a federal call to active duty and not a state call to active duty.

The regulations provide a specific and exclusive list of what is a “qualifying exigency”:

(1) short-notice deployment, defined as a notification of an impending call or order to active duty seven or less calendar days prior to date of deployment. This leave can only be used for seven calendar days, beginning on the date the covered military member is notified of an impending call or order to active duty.

(2) military events and related activities, defined as any official, military-sponsored ceremony/program/event, or any family support/assistance program/informational briefing sponsored or promoted by the military, military service organization, or the American Red Cross, that is related to the active duty or call to active duty status of a covered military member.

(3) childcare and school activities, defined as the following when necessitated by a covered military member’s active duty or call to duty: (a) arranging for alternative childcare; (b) providing childcare on an urgent, immediate basis; (c) enrolling a child in or transferring the child to a new school; (d) attending meetings at a school or day care facility.

(4) financial and legal arrangements, defined as making or updating financial or legal arrangements to address the covered military member’s absence.

(5) counseling, defined as attending counseling provided by someone other than a healthcare provider for oneself, the covered military member, or a qualifying family member, if that counseling is necessitated from the active duty or call to active duty status of a covered military member.

(6) rest and recuperation, defined as spending time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may only take up to five days of leave for each instance of rest and recuperation.

(7) post-deployment activities, defined as attending arrival ceremonies, reintegration briefings and events, and any other military sponsored ceremony or program for a period of 90 days following the termination of the covered military member’s active duty, or to address issues that arise from a military member’s death.

(8) additional activities, defined as other events that arise out of a covered military member’s active duty or call to active duty status, provided that both the employer and employee agree that such leave qualifies as an exigency, and both agree to the timing and duration of such leave.

Certification for Leave Taken Because of Qualifying Exigency
An employer may require an employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military that indicates the covered military member is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. The employer may also require documentation regarding the dates of the covered military member’s active duty service.

If an employee submits a complete and sufficient certification to support his/her request for leave because of a qualifying exigency, the employer may not request additional information from the employee. However, if the qualifying exigency involves meeting with a third party, the employer may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment and the nature of the meeting. The employer may also contact the Department of Defense to request verification. The employee’s permission is not required for these types of contact, but the employer may not solicit any additional information from the third party or the Department of Defense. The qualifying exigency regulations do not provide for any recertification requirements.

This military caregiver leave is allowed to care for a covered servicemember with a serious injury or illness incurred in the line of duty that rendered the servicemember medically unfit to perform the duties of his/her office, grade, rank, or rating, and for which the servicemember is: (1) undergoing medical treatment, recuperation, or therapy; or (2) otherwise in outpatient status; or (3) otherwise on the temporary disability retired list. The regulations do not provide a time proximity limit between the date of the injury or illness and the date needed for leave.

Employees may take 26 workweeks of caregiver leave in any single 12-month period. The 12-month period is measured from the first day the employee takes leave until 12 months after that date, regardless of how the employer counts leave for the normal FMLA 12-week leave. If the employee does not take 26 weeks of military caregiver leave in that 12-month period, the remaining leave is forfeited. If the leave qualifies under both military caregiver leave and FMLA leave, the employer must designate the leave as military caregiver leave first. However, an eligible employee is only entitled to a combined total of 26 weeks for leave for any qualifying FMLA reason during the single 12-month period, provided that the employee receives no more than 12 weeks, leave for a traditional FMLA qualifying event or for a qualifying exigency.

Finally, the 26 workweek entitlement is applied on a per-servicemember, per-injury basis. In other words, an employee may take 26 weeks of leave to care for one covered servicemember in one 12-month period, and then take another 26 weeks in a different 12 month period for a different servicemember, or for the same servicemember with a subsequent injury or illness.

Certification for Military Caregiver Leave
When leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his/her request for leave with a sufficient certification. This certification may be from: (1) a Department of Defense health care provider; (2) a Department of Veteran Affairs health care provider; (3) a Department of Defense TRICARE network authorized private health care provider; or (4) a Department of Defense non-network TRICARE authorized private health care provider. The health care provider is allowed to rely on Department of Defense representatives for military-related determinations.

The certification may seek information regarding: (1) whether the servicemember has incurred a serious injury or illness; (2) whether the injury or illness may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating; (3) whether the injury or illness was incurred by the member in the line of duty; (4) whether the servicemember is undergoing medical treatment, recuperation, or therapy, or is otherwise on outpatient status, or is otherwise on the temporary disability retired list; (5) the probably duration of the injury or illness; (6) the frequency and duration of leave required; (7) if the leave is requested on an intermittent or reduced schedule basis, an estimate of the frequency and duration of such leave; and (8) the family relationship of the eligible employees to the covered servicemember.

Amendments to General Rules
In addition to the military FMLA rules, DOL issued final rules amending the rules affecting all types of FMLA. These include:

Eligible Employees—12 months of employment

To qualify for FMLA leave, an employee must have been employed for at least 12 months and have worked 1,250 hours to qualify for FMLA leave. The 12-month period of employment need not be consecutive; in fact, the new regulations allow a continuous break in employment up to seven years. However, because the FMLA only requires employers to maintain records for three years, the employee bears the burden of proving employment in years four through seven.

The regulations include two exceptions to this seven-year cap: (1) breaks in service resulting from an employee’s fulfillment of National Guard or Reserve military service obligations; or (2) breaks where a written agreement exists concerning the employer’s intention to rehire the employee after the break in service.

Eligible Employees—1,250 hours of service

The regulations clarify eligibility requirements when an employee has satisfied the 1,250 hours requirement but not the 12 months of service requirement. When an employee is on leave at the time he/she meets the 12-month eligibility requirement, the period of leave prior to meeting the statutory requirement is non-FMLA leave and the period of leave after meeting the statutory requirement is FMLA leave. In other words, if an employer allows the 11-month employee to go on leave at that time, that employee would have non-FMLA protected leave for one month, but then would have an additional 12 weeks of FMLA-protected leave.

Location of Worksite for Joint Employees

The new regulations adopt the holding of Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004) in regard to determining the worksite of joint employees. Specifically, after an employee who is jointly employed is stationed at a fixed worksite for a period of at least one year, the employee’s worksite for purposes of employee eligibility[2] is the actual physical place where the employee works. This new rule only applies to joint employees; the definition of worksite remains unchanged for all other employees.

Continuing Treatment

The regulations no longer have an open-ended definition of continuing treatment. Rather, to meet the definition of continuing treatment, an employee must, in connection with a period of incapacity of more than three consecutive full calendar days, have: (1) one in-person visit to a health care provider within the first seven days of incapacity and a regimen of continuing treatment, such as a prescription; or (2) two in-person visits to a health care provider that occur within 30 days of the beginning of the period of incapacity unless extenuating circumstances exist. The 30 days begin with the first day of incapacity, and the first in-person visit to a health care provider must occur within the first seven days of incapacity.

Self-Treatment of Chronic Conditions

The regulations continue to allow FMLA leave for employees who self-treat chronic conditions, with one modification. A chronic serious health condition is one that requires “periodic visits for treatment,” which now is defined as requiring two or more visits to a health care provider per year.

Increments of Intermittent Leave

Under the new regulations, employees may still take increments of intermittent FMLA leave for the shortest period of time the employer uses to account for other types of leave, provided it is one hour or less. However, the new regulations provide a “physical impossibility” exception. Specifically, if employees, like flight attendants or train engineers, only need 3 hours of FMLA leave, but because of the nature of their jobs, their need for 3-hour leave requires them to miss an entire 8-hour shift because it is physically impossible to enter the worksite mid-shift (like a plane or train already en route), those employees are protected and their entire absence qualifies as FMLA leave. The regulations warn this is a narrowly tailored exception that only applies to worksites in which it is physically impossible to enter mid-shift, and no alternative work is available.

Calculating Leave on Variable Schedule and Effect of Overtime

When an employee works a variable schedule, the new regulations state that to calculate the number of hours of leave needed, the employer must calculate the employee’s weekly average over the prior 12 months. This is a change from the old regulations, which only required an average over the past 12 weeks.

The new regulations also clarify that if an employee would otherwise be required to report for overtime duty but for the taking of FMLA leave, then the overtime hours the employee would have been required to work may be counted against the employee’s FMLA entitlement.

Substitution of Paid Leave

The regulations clarify issues regarding substitution of paid leave for unpaid FMLA leave. For instance, they clarify that “substitution” simply means the unpaid FMLA leave and the paid leave run concurrently. Other clarifications include:

• The terms and conditions of an employer’s paid leave policies apply and must be followed by the employee in order to substitute any form of accrued paid leave, including paid vacation, personal leave, family leave, PTO, or sick leave.
• Employers must make employees aware of any additional requirements for the use of paid leave and must inform the employee that he/she remains entitled to unpaid FMLA leave even if he/she chooses not to meet the terms and conditions of the employer’s paid leave policies.
• Paid disability due to an FMLA-qualifying serious health condition is counted against an employee’s FMLA leave entitlement, regardless of whether the employee is using paid leave to supplement the disability benefits.
• Workers’ compensation leave may be counted against the employee’s FMLA entitlement.

Health Premium Payments

The regulations clarify that if an employer allows an employee’s health insurance to lapse due to an employee’s failure to pay his/her share of the premiums, the employer still has a duty to reinstate the employee’s health insurance when the employee returns to work and can be liable for harm suffered by the employee if it fails to do so.

Reinstatement

The regulations clarify that employees retain their right to reinstatement for a full 12 weeks of leave, which cannot be diminished by any amount of time spent in a light-duty position.

Waivers

The regulations reject the Fourth Circuit’s holding in Taylor v. Progress Energy, 493 F.3d 454 (4th Cir. 2007), and instead clarify that employees and employers are permitted to voluntarily agree to the settlement of past FMLA claims without having first obtained the permission or approval of the DOL or a court.

“Eligibility,” “Rights and Responsibilities,” and “Designation” Notices

The regulations separate the employer’s current notice obligation into three types of notices: “eligibility” notice, “rights and responsibilities” notice, and “designation” notice. First, employers must provide an “eligibility notice” to an employee within five business days after the employee either requests leave or the employer acquires knowledge that the employee’s leave may qualify under the FMLA. This notice must notify an employee whether he/she qualifies for leave, and if not, state at least one reason why.

The employer must also provide a “rights and responsibilities” to employees at the same time as the “eligibility” notice, which informs employees of any requirements to provide medical certifications, how to pay premiums for continuing benefits, and job restoration rights upon expiration of FMLA leave. It must also notify eligible employees of their right to substitute paid leave, and that they may still take unpaid FMLA leave should they not comply with the terms and conditions of the employer’s paid leave policies. If any of this information changes, the employer must provide the employee with an updated notice within five days.

Finally, once an employer has sufficient information to make a determination, the employer must notify the employee within five business days that the leave has been designated as FMLA leave. This “designation notice” must specify the number of hours, days or weeks that will be designated as FMLA leave. When the exact amount of leave needed may be unknown, an employer must inform the employee every thirty days of the amount of FMLA leave that has been designated and used during the preceding thirty-day period. Such information may be communicated on a pay stub. If an employer requires a fitness-for-duty certification to be restored to employment, the employer must also provide notice of this requirement in the designation notice.

Retroactive Designation of Leave

In light of the Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the regulations do not prohibit the retroactive designation of FMLA leave absent a showing of individual harm. However, the DOL strongly urges employers to timely designate FMLA leave as early as possible in the leave request process to eliminate “after the fact” designations. If the employer fails to timely designate FMLA leave and the employee is able to establish he/she suffered harm as a result, the employee may be entitled to a remedy.

Employee Notice Requirements

The regulations retain the current requirement that an employee must give at least 30 days-notice when the need for FMLA leave is foreseeable, and that notice must be given as soon as practicable when the leave is unforeseeable or is foreseeable but 30 days-notice is not practicable. However, the regulations add a requirement that if an employee provides less than 30 days-notice, an employer may require an employee to respond and explain why it was not practicable to provide 30 days-notice.

The regulations delete the provision that defined “as soon as practicable” as “ordinarily . . . within one or two business days of when the need for leave becomes known to the employee.” Rather, absent emergency situations, where an employee becomes aware of a need for FMLA leave less than thirty days in advance, the regulations assume it will “practicable” for the employee to provide notice of the need for leave either the same day or the next business day. Absent unusual circumstances, employers can require employees to follow established call-in procedures, and failure to properly notify employers of absences may delay or cause a denial of FMLA procedures.

As for the content of an employee’s notice, the regulations retain the standard that an employee need not assert his/her rights under the FMLA or even mention the FMLA to put the employer on notice, but at the same time the employee must provide the employer with sufficient information to make an employer aware that FMLA rights may be at issue. Simply “calling in sick” is insufficient. Rather, the regulations state that “sufficient information” may include information that: an employee is unable to perform the functions of the job; the employee is pregnant or has been hospitalized overnight or whether the employee or family member is under the continuing care of a health are provider; if the leave is due to a qualifying exigency, that a covered military member is on active duty or call to active duty status; and the anticipated duration of the absence.

Requesting Certifications & Curing Incomplete or Insufficient Certifications

Employers must request certification within five business days after employees give notice of the need for foreseen leave, or in the cases of unforeseen leave, within five business days after leave has commenced. The employees have fifteen calendar days to complete the certification form. However, this fifteen-day time period may be extended if the employee is unable to timely return the form despite his/her good faith efforts.

When an employer determines that a certification is incomplete or insufficient, the employer must state in writing what additional information is necessary and provide the employee with seven calendar days to cure the deficiency. Employers must provide additional time if the employee notifies the employer within the seven calendar-day period that he/she is unable to obtain the additional information despite diligent good faith efforts. If the employee does not correct the deficiencies in the resubmitted certification, the employer may deny the taking of FMLA leave. Notably, a failure to even provide certification is not “incomplete” or “insufficient,” and does not receive this seven calendar-day resubmission period.

Content of Medical Certifications[3] for Serious Health Conditions

The previous regulations stated that if less stringent medical certification standards applied to a sick leave plan, those standards must be followed when paid leave is substituted. The proposed regulations delete this section. If an employee seeks FMLA protection, the employer has a right to have the medical information permitted by the statute, regardless of what other leave policies require.

The regulations allow an employer to receive sufficient medical facts on the medical certification. For instance, the medical certification may contain information about symptoms, hospitalization, doctors' visits, prescribed medication, referrals for continuing treatment, and diagnosis.

Authentication and Clarification of Medical Certification

Importantly, the regulations now allow employers to communicate directly with an employee’s health care provider to authenticate or clarify a medical certification. However, such contact may only take place after the employee has been afforded the opportunity to cure any deficiencies with the certification. Moreover, such contact may not be made by the employee’s direct supervisor. Rather, the employer representative contacting an employee’s health care provider must be a health care practitioner, a human resources professional, a leave administrator, or a management official that is not the employee’s direct supervisor. The contact must be limited to understanding the handwriting on the medical certification or the meaning of a response.

Employee consent is unnecessary. However, the employer seekingclarification must comply with the HIPAA Privacy Rule. If an employee fails to provide HIPAA consent, he/she may jeopardize his/her FMLA rights if the information provided is incomplete or insufficient.

Recertifications

As a general rule, an employer may request recertification no more often than every thirty days and only in connection with the absence of the employee. If the minimum duration for the period of incapacity is specified on the initial certification, the employer may not request recertification until that time period has expired. However, in all cases, recertifications may be requested every six months, including medical certifications that contain “indefinite,” “unknown,” or “lifetime” durational indications.

Fitness for Duty Certifications

An employer may not require an employee to submit to a medical exam by the employer’s health care provider as a condition of returning to work. A medical examination at the employer’s expense by an employer’s health care provider may be required only after the employee has returned from FMLA leave and must be job-related and consistent with business necessity as required by the ADA. In other words, if the employer is concerned about the health care provider’s fitness-for-duty certification, the employer may, consistent with the ADA, require a medical exam at the employer’s expense after the employer has returned to work from FMLA leave; however, the employer may not delay the employee’s return to work while arranging for and having the employee undergo a medical examination.

The new regulations now allow an employer to directly contact an employee’s health care provider for purposes of authenticating and clarifying the fitness-for-duty statement. The employer can provide the health care provider with a list of essential job functions and require that health care provider to certify that the employee can perform these functions. However, if the employer wants the health care provider to consider a list of essential job functions, it must provide them to the employee in the initial designation notice.

For intermittent leave, the regulations permit employers to require a fitness-for-duty certificate every thirty days if an employee has used intermittent leave during that period and reasonable safety concerns exist. The regulations define “reasonable safety concerns” as a reasonable belief of significant risk of harm to the individual employee or others. The employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur. This determination must be based on objective, factual evidence and not subjective perceptions.

This Alert was prepared by Senior Associate Jaclyn A. Hermes (jhermes@fulbright.com or 512 536 2465) from Fulbright's Austin Labor and Employment Law Practice Group. If you have any questions, please contact any of our labor and employment attorneys listed below.

Fulbright National Web Seminar
We will conduct a national web seminar without charge on December 4, 2008, to discuss these new regulations. To register for the seminar, please click here.

Dallas
Danielle A. Clarkson, Sr. Associate, 214 855 8329, dclarkson@fulbright.com
William P. Finegan*, Partner, 214 855 7455, wfinegan@fulbright.com
Cindy Kang*, Partner, 214 855 7499, ckang@fulbright.com
Richard M. Kobdish*, Partner, 214 855 8188, rkobdish@fulbright.com
Lindsey D. Sberna, Associate, 214 855 7441, lsberna@fulbright.com
Helen L. Thigpen, Counsel, 214 855 7117, hthigpen@fulbright.com

Houston
Carolanda Bremond, Associate, 713 651 5667, cbremond@fulbright.com
Shauna J. Clark*, Partner, 713 651 5601, sclark@fulbright.com
Lawrence H. Clore*, Partner, 713 651 5403, lclore@fulbright.com
Colleen K. Cockrum, Associate, 713 651 5504, ccockrum@fulbright.com
M. Carter Crow, Partner, 713 651 5218, mcrow@fulbright.com
Kristina Frankel, Associate, 713 651 5413, kfrankel@fulbright.com
David B. Jordan*, Sr. Associate, 713 651 5592, djordan@fulbright.com
T. J. Wray*, Partner, 713 651 5585, tjwray@fulbright.com

Los Angeles
Candace S. Bertoldi, Associate, 213 892 9363, cbertoldi@fulbright.com
Julie M. Capell, Sr. Associate, 213 892 9282, jcapell@fulbright.com
Michael S. Chamberlin, Sr. Counsel, 213 892 9284, mchamberlin@fulbright.com
Robert M. Dawson, Partner, 213 892 9211, rmdawson@fulbright.com
James R. Evans, Jr., Partner, 213 892 9322, jevans@fulbright.com
Amy M. McGinnis, Associate, 213 892 9295, amcginnis@fulbright.com
Marcus A. Torrano, Partner, 213 892 9292, mtorrano@fulbright.com

Minneapolis
Cynthia A. Bremer, Sr. Counsel, 612 321 2222, cbremer@fulbright.com
Barbara J. D’Aquila, Partner, 612 321 2201, bdaquila@fulbright.com
Ronn B. Kreps, Partner-in-Charge, 612 321 2810, rkreps@fulbright.com
Patrick R. Martin, Sr. Counsel, 612 321 2205, prmartin@fulbright.com
Kelly Moffitt, Associate, 612 321 2243, kmoffitt@fulbright.com

New York
Samantha E. Beltre, Associate, 212 318 3451, sbeltre@fulbright.com
Douglas P. Catalano, Partner, 212 318 3360, dcatalano@fulbright.com
Ralph C. Dawson, Partner, 212 318 3337, rcdawson@fulbright.com
Erica A. Reed, Associate, 212 318 3006, ereed@fulbright.com
Neil G. Sparber, Partner, 212 318 3038, nsparber@fulbright.com

San Antonio
Cynthia M. Benedict*, Partner, 210 270 7120, cbenedict@fulbright.com
Philip J. Pfeiffer, Of Counsel, 210 270 7117, ppfeiffer@fulbright.com
Stephen J. Romero, Associate, 210 270 7128, sromero@fulbright.com
Paul E. Sexton, Jr., Of Counsel, 210 270 7116, psexton@fulbright.com

St. Louis
James G. Wiehl, Partner, 314 505 8820, jwiehl@fulbright.com

Washington, D.C.
Robert A. Burgoyne, Partner, 202 662 4513, rburgoyne@fulbright.com
Michelle C. Pardo, Sr. Associate, 202 662 4553, mpardo@fulbright.com
John M. Simpson, Partner, 202 662 4539, jsimpson@fulbright.com

*Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

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Fulbright represents clients before state and federal courts, in arbitration, and before administrative agencies and other forums. We also assist clients in their efforts to avoid litigation, including counseling on every aspect of employment law. If an issue arises concerning the workplace, chances are that we have dealt with it.

 ^[1] Next of kin is defined as the servicemember’s nearest blood relative, other than his/her spouse, parent, son, or daughter, in this order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provision; brothers and sisters; grandparents; aunts and uncles; and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. The regulations specifically note there can be more than one “next of kin”; for instance, if three siblings exist, all three are next of kin who can qualify for leave, either consecutively or simultaneously. The regulations allow employers to seek reasonable documentation of an employee’s next of kin status.