FMLA Regulations

The regulations become effective on January 16, 2009

Proposed Revisions to the FMLA Regulations

Joint Employers

The existing section of the current regulations governs employer coverage and employee eligibility in the case of joint employment and establishes responsibilities of the primary and secondary employers.

The proposed DOL regulations establish that Professional Employer Organizations ("PEOs") that contract with client employers only to perform administrative functions (such as payroll, benefits, regulatory paperwork, and updating employment policies) are not joint employers with their clients to the extent that they:

(a) merely perform such administrative functions and do not have the right to hire, fire, assign, or direct and control the client's employees, and

(b) do not benefit from the work that the employees perform.

Definition of "Eligible" Employee

The proposed regulations establish that the section which sets forth the eligibility standards employees must meet in order to take FMLA leave (including the requirement that the employee must have been employed by the employer for at least 12 months, and that the 12 months need not be consecutive) be changed to state that although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of five years or more need not be counted. The DOL has not proposed changing the three-year record keeping requirements under the FMLA. Therefore, as in the past, employers must retain documentation to confirm previous employment for a former employee who at the time of rehiring had a break in service of three years or less. Where an employee relies on a period of employment that predates the employer's records, it will be incumbent upon the employee to demonstrate some proof of the prior employment.

The DOL also proposes two new exceptions to the general "Eligible Employee" rule.

The DOL proposes to provide coverage in situations where:

(a) a break in service resulting from the employee's fulfillment of military obligations; and (b) a period of approved absence or unpaid leave, such as for education or child rearing purposes, where a written agreement or collective bargaining agreement exists concerning the employer's intent to rehire the employee.

The DOL recognizes that in these situations, employment prior to the break-in-service must be used in determining whether the employee has been employed for at least 12 months, regardless of the length of the break-in-service. The DOL regulations also propose to clarify existing language which state that employee eligibility determinations "must be made as of the date leave commences." This language will be clarify the existing confusion regarding whether an otherwise eligible employees who fulfilled the 1,250 hours work requirement, but not the 12 months of employment requirement, can begin a block of FMLA leave. The proposed regulation states that when an employee is on leave at the time he 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 the statutory requirement is met is FMLA leave.

Serious Health Condition

The DOL retained the current definition of "serious health condition," in the proposed regulation but added a slight modification. The DOL maintained the types of treatments and conditions ordinarily excluded by the definition (i.e. colds, flu, etc.). The DOL also retained its current objective test that, ordinarily, such health conditions would not satisfy the definition of "serious health condition" in § 825.114(a)(2) unless they met the regulatory criteria for a serious health condition, i.e., an incapacity of more than three consecutive calendar days that also involves qualifying treatment. Section 825.115 defines continuing treatment for purposes of establishing a serious health condition. The existing regulation establishes that an employee can meet this definition if, in connection with a period of incapacity of more than three consecutive calendar days, the employee or family member has one visit to a health care provider and a regimen of continuing treatment, such as a prescription, or two visits to a health care provider. The DOL regulations propose to change the rule that the two visits to a health care provider must occur within 30 days of the beginning of the period of incapacity unless extenuating circumstances exist--rather DOL proposes to establish a more open-ended time frame now existing under the current regulations. The regulations currently provide that a chronic serious health condition "requires periodic visits for treatment." The term "periodic" was not defined, however the DOL now proposes to define the term "periodic" as twice or more a year in connection with chronic serious health conditions.

Definition: Spouse, Parent, Son or Daughter, Adoption and Foster Care The current FMLA regulations define spouse, parent, son and daughter for purposes of determining whether an employee qualifies for FMLA leave and provide FMLA leave where a child 18 years or older is incapable of self-care because of a disability. The DOL proposed regulation will seek to specify that the determination of whether an adult child has a disability should be made at the time leave is to commence.

Needed To Care For a Family Member

The DOL proposed regulation seeks to clarify that the employee seeking protective leave need not be the only individual or family member available to care for the qualified family member.

Definition of Health Care Provider

The DOL proposed regulation recognizes that physician assistants may be added to the list of recognized health care providers and proposes eliminating the current requirement that physicians assistants operate "without supervision by a doctor or other health care provider."

Amount of Leave

The DOL is seeking information from the public on whether "scheduled holidays [should] count against an employee's 12 weeks of FMLA leave when the employee is out for a full week. Under the current regulation, the scheduled holidays do apply against the FMLA leave entitlement. Under the proposed regulation, if an employee needs less than a full week of FMLA leave, and a holiday falls within the partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee's FMLA leave entitlement (if the employee would not otherwise have been required to report for work on that day). However, if an employee requests a full week of leave in a week with a holiday, the hours the employee does not work on the holiday will count against the employee's FMLA entitlement.

Intermittent Leave or Reduced Leave Schedule

The proposed DOL regulations will clarify that an employee who takes intermittent leave when medically necessary has a statutory obligation to make a "reasonable effort" as opposed to an "attempt" to schedule leave so that it does not disrupt the employer's operations.

Substitution of Paid Leave

The proposed FMLA regulations seek to clarify the terms and conditions of an employer's paid leave policies and in how they must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave– including paid vacation, personal leave, family leave, paid time off or sick leave. The regulations seek to clarify that the term "substitution" means that the unpaid FMLA leave and the paid leave provided by an employer run concurrently. This is standard practice under the current regulations and is not a change in DOL enforcement policy.

The DOL also proposed safeguards for employees. The DOL proposes that when an employer provides giving a notice of eligibility for FMLA leave to an employee, an employer must make the employee aware of any additional requirements for the use of paid leave and must inform the employee that he remains entitled to unpaid FMLA leave even if he decides not to follow the employer's paid leave policies. (This is recognition that the employee may still take less than full day intermittent leave under FMLA even if the employer's paid leave policies only offer full day leave or paid time off.) The proposed regulations eliminated language requiring when an employer's procedural requirements for taking paid leave are less stringent than the requirements of the FMLA, employees cannot be required to comply with higher FMLA standards. The new regulations also clarify that for public agency employees, the regulations will allow the use of compensatory time accrued under the Fair Labor Standards Act (FLSA) and that such leave will run concurrently with unpaid FMLA leave when leave is taken for an FMLA-qualifying reason.

Employee Failure to Make Health Premium Payments

The DOL proposes to include additional language clarifying that in a situation where an employer allows an employee's health insurance to lapse due to the employee's failure to pay his share of the premium, the employer will retain the duty to reinstate the employee's health insurance when the employee returns to work. If the employer fails to reinstate the insurance, it can be liable for harm suffered by the employee if it fails to do so.

Equivalent Position

The proposed regulation provides that an employee become entitled to pay increases and certain types of bonuses when taking FMLA leave. This section, which defines equivalent pay, will allow the employer to disqualify an employee from a bonus or award if such award is based on the achievement of a goal where the employee fails to achieve that goal as a result of an FMLA absence. This rule establishes that the employer must apply the rule in a nondiscriminatory fashion.

Employees Who Request Leave or Otherwise Assert FMLA Rights

The DOL proposed regulations clarify that the voluntary settlement and release of past FMLA claims is valid without having to first obtain the permission or approval of the DOL or a court. This proposal carries forward the DOL's understanding of its existing regulations, and in effect rejects the Fourth Circuit's decision in Taylor v. Progress Energy, 493 F.3d 454 (4th Cir. 2007), petition for cert. filed, 75 U.S.L.W. 3226 (Oct. 22, 2007) (No. 07-539), which held that employees cannot voluntarily settle their past FMLA claims. In effect, under the proposed regulation, only the waiver of prospective FMLA rights is prohibited.

Expansion of Family Leave Status to Family Members of Wounded Service Members

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for 2008 (NDAA). NDAA amended the Family and Medical Leave Act (FMLA) to expand sections regarding special FMLA coverage to include a new category of families of service members called up to duty and injured in Iraq and Afghanistan.

The DOL issued regulations to implement the new provisions of the statute, namely the provisions amending the FMLA to provide two new types of leave

(1) Service member family caregiver leave that provides up to 26 weeks of protected unpaid leave in a single 12-month period to any eligible employee who is the spouse, child, parent, or next-of-kin of a covered service member to care for the service member injured during active duty. This provision was effective as of January 28, 2008.

(2) A new provision permits an eligible employee to take up to 12 weeks of leave (in a 12-month period) as a result of any "qualifying exigency" because the employee's spouse, son, daughter or parent is on active duty (or has been notified of an impending call to duty) in the Armed Forces in support of a "contingency operation."

Notice to employers of the need for the second type of leave must be reasonable and practicable and a provision will become effective only after the DOL issues regulations, although the DOL has encouraged employers to act reasonably in affording leave in the interim. This amendment is significant because it will double the available leave time to employees who care for injured service members, and also because the new law defines "covered service member" broadly enough to include "a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." The statute also expands the definition of "covered employee" to mean one's next-of-kin to include the nearest blood relative of that individual.

"Undergoing medical treatment"

In the regulations, DOL states that "undergoing medical treatment" means "any treatment, recuperation, or therapy provided to a service member for a serious injury or illness". They want to have your comments on whether there should be a requirements established between the covered service member's injury or illness and the treatment, recuperation, or therapy. DOL also wants to know whose reports to rely on for FMLA purposes. For example, should an employer rely on the Defense Department's determination as to whether a service member is undergoing medical treatment, recuperation, or therapy for a serious illness or injury?

"Next-of-Kin" and "Nearest Blood Relative"

The FMLA regulation defines "next-of-kin" as the "nearest blood relative" of an individual. The DOL provides a list fitting that definition which includes natural and adopted children, remarried surviving spouses, grandparents, and others. Questions have been raised whether the list should be adopted and whether it should require a certification of next-of-kin status.

DOL has posed questions whether "nearest blood relative" means that each covered service member may have only one next-of-kin who is eligible to take FMLA leave to care for them while undergoing treatment. The DOL queries whether this language should be interpreted to provide military caregiver leave to any eligible next-of-kin, or if it is better to have the service member designate a blood relative or other individual such as those recognized by the Defense Department's Committed and Designated Representative. In the situation where an eligible employee takes military caregiver leave to care for a service member whose serious injury or illness was incurred in the line of duty but does not manifest itself until after the service member has left the military service, the DOL wants to hear from employers on how they will address the request for leave. They also want to know whether the terms "son or daughter" be given a broader meaning to include non-minors such as adult children.

Another issue raised is whether the service member family leave--only available during one single 12-month period-- is available to an employee with multiple entitlements? Additional questions to address include when is the 12-month period calculated (1) from the date of the service member's injury, (2) the date of the determination that the service member has a serious injury or illness, or (3) the date when the employee is needed to care for the seriously injured/ill service member? To that end, the DOL wants to know whether the 26-week leave entitlement can be interpreted to apply to each individually covered service member for employees with multiple service members in their family. This would mean that an eligible employee is entitled to 26 weeks of leave to care for an injured daughter and an additional 26 weeks of leave to care for an injured parent who is also a covered service member. DOL seeks comments on the new qualifying reason to take family leave--"because of any qualifying exigency". Under the new regulation, the reason for leave arises merely because a spouse, a son, a daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." The DOL says that their initial view supports the position that there must be some nexus between the eligible employee's need for leave and the service member's active duty status.

DOL Seeks Comments On Qualifying Exigency

The DOL believes that a "qualifying exigency" could be routine and that it would include leave for making child care arrangements, making financial/legal arrangements to address the service member's absence, and attending counseling sessions related to the active duty of the service member. DOL believes the leave should be limited to non-medical related exigencies and is soliciting comments whether it should develop a list of pre-deployment and post-deployment qualifying exigencies. Eligibility for the leave would require some proof that the exigency arises out of the service member's active duty status. Your clients will need to know that the rules covering substitution of paid leave, intermittent leave, and reduced schedule leave apply to the new types of FMLA military leave. The DOL wants to hear your comments on whether any modifications in the current regulations are required for the new military leave entitlements.

Service Member Family Leave

Employers should keep in mind that the new service member family leave which provides up to 26 weeks of caregiver leave in a single 12-month period and is now effective.

Qualifying Exigency Leave

The "qualifying exigency" leave entitlement is not yet effective, however pending final regulations; the DOL has encouraged employers to act reasonably, in the interim, in affording such leave. The proposed regulations will make a significant impact in the way FMLA will impact employer plans. Employers will need to make adjustments in their practices and should familiarize themselves with the proposed rules, even thought the need to change policies could be months away --except for the military service leave provisions that are effective immediately.

Employer Notice Requirement

The current regulation requires that an employer post an FMLA notice to employees and place the notice of the employer's policy on the FMLA in employee handbooks. In the proposed DOL regulations, the notice would apply to situations where

(a) an employer fails to notify an employee of his or her FMLA rights,

(b) an employer fails to protect an employee when they assert their FMLA rights, and

The new regulations will require that the FMLA eligibility notice be sent to the employee within five business days as opposed to two business days in the previous regulation. The period runs from the time the employee requests leave or the employer receives knowledge that the employee's leave may be for an FMLA-qualifying reason. The regulations will also require the employer to notify an employee who requests leave whether FMLA leave is still available to the employee in the applicable 12-month-period, something that is not required under the current regulations. The employer must notify the employee if they are not eligible for FMLA leave or when they no longer have FMLA leave available (i.e. when leave has been exhausted within a 12 month period). The notice must state the reasons why the employee is not eligible for FMLA leave. Upon notification to an employee regarding FMLA leave, the employer must also notify an eligible employee of the right to substitute employer-provided paid leave and any conditions or limitations regarding the leave substitution. The proposed regulations require the employer to advise the employee that he may take unpaid FMLA leave if the employee does not comply with the terms and conditions of the employer's paid leave policies. The regulations call for employers to provide a statement of the employee's essential job functions with the FMLA eligibility notice. The notice will be useful for all parties if they will require that those functions be addressed in a fitness-for-duty certification before returning to work.

FMLA Designation Notice
The proposed regulations call for a new time frame for an employer to notify the employee when leave is designated as FMLA leave. The employer has five business day--rather than two business days under the previous regulation--to advise the employee that they have received sufficient information to make an FMLA leave determination. The proposed regulations also require an additional step by the employer--which they inform the employee, if possible, of the number of hours, days or weeks that will be designated as FMLA leave. In addition, the regulations call for the employer to inform the employee every 30 days that leave has been designated and protected under the FMLA and advise the employee as to the amount so designated if the employee took leave during the 30-day period. An employer also will be required to notify the employee if the leave is not designated as FMLA leave due to insufficient information or a non-qualifying reason. The current regulations do not specifically address designation of leave or leave for unforeseen circumstances or intermittent leave.

Retroactive Leave
The DOL's proposed regulations acknowledge that employers may retroactively designate FMLA leave absent a showing of individual harm, but that if an employer fails to designate leave, timely and if an employee establishes that he or she has suffered harm as a result of the employer's actions, a remedy may be available. (This was the holding in Ragsdale where the Supreme Court held that the remedies an employer may be liable for include compensation and benefits lost by reason of the violation, other monetary losses sustained as a direct result of the violation, and appropriate equitable relief, including employment, reinstatement, promotion, or any other resulting from the harm suffered.)

Foreseeable FMLA Leave
Under current regulations, an employee must give at least 30 days' notice if his request for FMLA leave is foreseeable. If such notice is not possible, the employee must give notice "as soon as practicable." Under the new regulations, the DOL proposes to delete the definition of "as soon as practicable". The proposed regulation instead provides that when an employee gives less than 30 days advance notice of the need for FMLA leave, the employee must respond to a request from the employer and explain why it was not practicable to give 30 days notice.

Regarding the content of employee notice to his employer, the DOL proposes to retain the standard that an employee need not assert his rights under the FMLA or even mention the FMLA to put the employer "on notice of the need for FMLA leave," but at the same time employees must provide sufficient information to make an employer aware that FMLA rights may be at issue. The proposed regulation states that employees must respond to employers' inquiries designed to determine whether leave is FMLA-qualifying. If they do not, employees risk losing FMLA protection if the employer is unable to determine whether the leave qualifies for leave. The new DOL regulation will eliminate the language in the current regulations to the effect that an employer cannot delay or deny FMLA leave if an employee fails to follow the employer's usual notice and procedural requirements for calling in absences and requesting leave. The DOL regulation proposes the following--absent unusual circumstances, employees may be required to follow established call-in procedures (so long as they comply with the regulations), and failure to properly notify employers of absences may cause a delay or denial of FMLA protections. The purpose of the proposed regulation effectively eliminates language that employers cannot enforce FMLA notice requirements if those requirements are stricter than the terms of a collective bargaining agreement, state law or employer leave policy.

Unforeseeable FMLA Leave
The DOL regulation will retain the requirement that an employee provide notice as soon as practicable under the facts and circumstances of the particular case. This is the same standard as notice for foreseeable FMLA leave.

The DOL regulation will require that the employee provide the employer with sufficient information to put the employer on notice that the absence may be FMLA-protected when the leave is unforeseeable. The same standard of "sufficient information" would apply for both foreseeable and unforeseeable leave. However, in the case of unforeseeable leave, the DOL will require that calling in with the simple statement that the employee or the employee's family member is "sick" without providing more information will not be considered sufficient notice to trigger an employer's obligations under FMLA.

The DOL regulations propose that an employee comply with the employer's usual procedures for calling in and requesting unforeseeable leave, except when extraordinary circumstances exist (such as when the employee or a family member needs emergency medical treatment). Except under extraordinary circumstances, if an employee fails to follow the employer's call-in procedures, then the employee will be subject to whatever discipline the employer's rules provide for, and the employer may delay FMLA coverage until the employee complies with the rules.

Medical Certifications
The DOL regulations will modify the time frame for submitting a medical certification to a 15-day standard for both foreseeable and unforeseeable leave. The DOL proposes to require that an employer request medical certification from the employee be extended to five business days (rather than 2 days) of receiving the employee notice.

To address the issue of insufficient medical certifications, DOL proposes to add the language "a certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed." The DOL proposed regulations would define an insufficient certification as one where the information provided is "vague, ambiguous or non-responsive." To accomplish this, the DOL proposes a method for employers to determine when a certification is incomplete or insufficient. The employer must state in writing what additional information is necessary and provide the employee with 7 calendar days to cure the deficiency. Additional time must be allowed where the employee notifies the employer within the seven-calendar day period that he is unable to obtain the additional information despite diligent good faith efforts. If the deficiencies specified by the employer are not corrected in a resubmitted certification, the employer may deny FMLA leave. The DOL further clarifies that it is the employee's responsibility to provide a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee (such as that required by HIPAA) in order for the health care provider to release a sufficient and complete certification to the employer to support the employee's FMLA request.

Certification Requirements
The DOL proposes the following revisions to the medical certification form to establish that the certification contain appropriate medical facts regarding the patient's health condition for which FMLA leave is requested:

(1) the pertinent specialization and fax number of the health care provider must be provided;

(2) the health care provider may provide information on the diagnosis of the patient's health condition (however, such a diagnosis is not a necessary component of a complete FMLA certification); and

(3) the health care provider must certify that intermittent or reduced schedule leave is medically necessary.

DOL requests guidance as to what constitutes sufficient medical facts for purposes of responding to the question of how to deal with reports or information on symptoms, hospitalization and doctors visits; whether medication has been prescribed, referrals for evaluation or treatment or any other regimen of continuing treatment.

"Fitness for Duty"
The proposed regulation will establish a new method of clarifying the current FMLA fitness for duty statement. Rather than a "simple statement" from the health care provider that the employee is able to resume work at the end of FMLA leave, the proposed regulations will permit an employer to require an employee to furnish a fitness-for-duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist.

The DOL also proposes to allow employers to obtain re-certifications every six months in situations where leave will last for an extended period of time which they define as months of years, but also "indefinite" or "lifetime". Under the new proposal, the recertification can be requested in less than 30 days in situations where the employee requests an extension of leave. This rules will also apply in situations where the circumstances have significantly changed based on the nature or severity of the illness or where the employer receives information that raises questions about the employee's stated reason for the absence or continuing validity of the certification. In these scenarios, the proposed regulation will allow a recertification to be obtained with information obtained from the health care provider with a record of the employee's absence pattern. The employer may query the health care provider to opine whether the serious health condition and need for leave is consistent with such a pattern of absence. The DOL proposes requiring the employee, or a family member, to authorize the release of relevant medical information from the employee's health care provider to the employer's health care provider regarding the condition for which leave is sought.

The proposed regulation clarifies the contact between the employer and the employee's health care provider for the purpose of clarifying the medical certification keeping in mind that it must comply with the HIPAA Privacy Rule. DOL has also added language to make clear that if such consent is not given, an employee may jeopardize his or her FMLA rights if the information provided is incomplete or insufficient. Currently employers must seek the employee's permission before they authenticate or clarify the medical certification.

Coordination with Workers' Compensation
Having determined that FMLA does not prevent the employer from following the workers'
compensation provisions, the DOL seeks to permit employers to request additional information" from the workers' compensation health care provider on leave requests. To help clarify the interaction between paid leave and sick leave/benefit plans and FMLA leave DOL has proposed to allow employers to request information if employee is required to provide additional medical information to receive payments under a paid leave plan or benefit plan. Under the proposal an employer may require that the employee provide the additional information, as long as it is made clear to the employee that the additional information is requested only in connection with qualifying for the paid leave benefit and does not affect the employee's unpaid FMLA leave entitlement.

Coordination with Employment Rules and ADA
The DOL has proposed to allow an employer to designate paid or unpaid leave under FMLA in one specific instance. The change is in response to a U.S. Supreme Court decision in Ragsdale which invalidated a provision in FMLA which limited how employers designated leave. It seeks to change the current FMLA rules which say that if an employee takes paid or unpaid leave, and the employer does not designate the leave as FMLA leave, the leave taken does not count against the employee's FMLA entitlement. As far as the interaction between the FMLA certification and ADA, the DOL will clarify that employers are not prevented from following the procedures under the ADA for requesting medical information. See Ragsdale, 535 U.S. 81, 89 (2002).