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by Employment Law Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
Norwood Corporate Center
1500 Providence Highway, Suite 33
Norwood, MA 02062
(781) 551-0800
Llockard@leslielockard.com
www.leslielockard.com
The U.S. Department of Labor has issued new regulations which significantly change many of the rules relating to family and medical leave, imposing many new obligations on both employers and employees. The Family and Medical Leave Act (FMLA) was one of the first pieces of legislation signed into law by President Clinton in 1993. The FMLA permitted eligible employees to take up to 12 weeks of job protected leave per year for the following purposes:
1. The employee (either male or female) requests leave to care for his/her child after birth, adoption or placement for foster care.
2. The employee requests leave to care for a spouse, child or parent who has a serious health condition.
3. The employee requests leave because of inability to perform his/her job as a result of the serious health condition.
One of the law's main proponents was Vice President Al Gore, who had gotten to know a number of parents at the hospital where he and his wife were caring for their son after he had been seriously injured in a car accident. Vice President Gore was particularly touched by a mother and father who were both fired while talking time off from work to care for their hospitalized child. Mr. Gore felt that it was wrong to force people to choose between earning their living and being good parents.
The FMLA applies to most businesses which employ 50 or more employees at the work site of the employee seeking leave, or within 75 miles of that work site. To be eligible for FMLA leave, the employee must have been employed by the employer for at least 12 months (which need not be consecutive months), and must have worked for the employer at least 1250 hours during the 12 month period immediately before the leave begins.
During FMLA leave, the employer must maintain the employee's health insurance coverage on the same terms that it would have if the employee remained actively employed during the period of leave. At the end of FMLA leave, the employer generally must return the employee to the position (s)he held when leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. The employee's employment benefits must also be resumed at the same levels as when leave began, subject to any generally applicable changes in benefit levels that may have taken place during the period of leave. The employer cannot retaliate against the employee for taking FMLA leave, nor can the use of FMLA leave be counted against the employee, such as in applying attendance policies.
THE NEW REGULATIONS RESULTED MAINLY FROM A NEW LAW EXTENDING THE FMLA TO MILITARY FAMILIES, AND THE DEPT. OF LABOR'S SOLICITATION OF SUGGESTED FMLA IMPROVEMENTS FROM THE PUBLIC
Several developments in particular lead to the new extensive revision of the FMLA regulations. The first was a new law enacted in February, 2008 which extended the FMLA significantly for military families. A substantial portion of the newly revised regulations sets forth new rules and definitions for the implementation of these new types of military family leaves. Another development that lead to the new regulations was the Department of Labor (DOL)'s decision in 2006 to solicit comments from the public about how the FMLA could be improved. They received over 15000 public comments.
The DOL received many comments from employees describing how critically important the right to take FMLA leave had been to them. They described being able to recover from cancer, care for terminally ill parent or for a child with sudden asthma-induced respiratory failures, without fear of losing their jobs. They also believed that the right to take FMLA leave permitted them to be more productive while at work. They also described greatly increased feeling of loyalty to employers who were sympathetic and helpful when they needed leave.
The DOL also received a surprising number of complaints of employee leave abuse, particularly of the right to take intermittent leave. (This is surprising to me because in more than twenty years of practice as an employment attorney, I have never personally heard such a complaint from an employer). Employers reported feeling that some employees used FMLA leave rights fraudulently to get preferred shifts, convert a full time job to a part time job, avoid being penalized for tardiness, to leave work early for personal reasons, and to get weekends and holidays off. Employers reported finding it particularly difficult to verify the need to take FMLA leave for chronic conditions an employee self diagnoses, such as back problems, diabetes symptoms and migraines. They reported that employee morale was adversely affected by coworker resentment of the special privileges enjoyed by these employees who were suspected of abusing FMLA leave.
In formulating the new regulations, the DOL also considered its own experience in interpreting and enforcing the FMLA, as well as some Court decisions of FMLA cases. Most of the nonmilitary revisions to the FMLA regulations were made in an effort to simplify, clarify and improve the rules governing FMLA leave. These latter amendments include measures to:
1. make it easier for employers to verify eligibility for FMLA leave
2. strengthen notice obligations for both employers and employees
3. impose new obligations on employers to designate leave as FMLA qualifying
4. simplify the rules about concurrent leaves
5. eliminate most automatic penalties for failure to designate leave as FMLA qualifying
6. clarify controversial or arguably ill advised rules, such as those concerning light duty and perfect attendance bonuses
The 2008 Law That Extended the FMLA to Military Families
In 2008, Congress amended the FMLA to add two new reasons for which eligible employees can take FMLA leave. The two new types of leave are available to employees who would be eligible for other types of FMLA leave: those who have worked for a sufficiently large employer (as described above) for at least a year, and have worked at least 1250 hours for the employer during the previous 12 month period. The first new provision allows an eligible employee "who is the spouse, son, daughter, parent or next of kin (nearest blood relative)" of a "covered service member" to take a total of 26 unpaid workweeks of FMLA leave during a 12 month period to care for the service member. A "covered service member" was defined as 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 on the temporary disability retired list, for a serious injury or illness. A "serious injury or illness" is defined as one incurred in the line of duty on active duty "that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating". This 26 weeks of leave is available just once during a single 12 month period, as opposed to being available every year, as is the case with other types of FMLA leaves. An employee eligible for this new type of leave may elect, or the employer may require the employee, to substitute any accrued paid vacation, personal, family, medical or sick leave for unpaid leave, except the employer is not required to allow use of accrued paid sick or medical leave if such leave would not ordinarily be usable to care for sick or injured relatives. This type of military leave may be taken on intermittent basis during the year, rather than in a block all at once.
The second new type of military leave allows an otherwise eligible employee to take up to 12 weeks of leave per year "because of any qualifying exigency arising out of the fact that the spouse, son, 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 certain types of military operations. This type of leave may also be taken on an intermittent basis. If employees seek to take both of the new types of leave in a single year, they will be limited to 26 weeks combined, as opposed to being able to stack 26 weeks and 12 weeks of military related leave in the same year.
I. THE NEW FMLA MILITARY RELATED REGULATIONS
A. Leave taken to care for an ill or injured service member
The new regulations flesh out the obligation to grant up to 26 weeks of unpaid leave during a single twelve month period to the spouse, child, parent (not parent in law) or next of kin of a covered service member with a qualifying "serious injury or illness" incurred in the line of duty, while on active duty. Consistent with the new statute described above, a "covered service member" is defined as a current member of the Armed Forces, including 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. Note: This type of leave CANNOT be taken to care for former members of the Armed Forces, National Guard or Reserves, or people on the permanent disability retired list. A "injury or illness" is defined as one that was incurred by a covered servicemember in the line of duty, on active duty, that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating. A "son or daughter" for both types of military leave purposes can be of any age. He/she need not be under the age of 18, or incapable of self care, as is required for other types of FMLA leave.
The "single 12-month period" begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12 month period established by the employer for other types of FMLA leave, such as a calendar year, rolling year, etc. If an employee does not take all 26 available weeks during that twelve month period, the rest of that type of leave is forfeited. An employee can take just one period of 26 weeks to care for a particular service member with a particular illness or injury, but may obtain a second period of 26 weeks to care for a different qualifying service member. The employee may also obtain another 26 weeks to care for the same service member if he/she suffers another subsequent covered illness or injury. However, no more than 26 weeks of leave can be taken in one 12 month period. So, for example, if an employee becomes eligible to care for two injured service members beginning at two different times in the same 12 month period, the employee is limited to 26 weeks during that period.
An eligible employee is limited to a combined total of 26 weeks of all types of FMLA leave during the "single 12-month period." Thus, an employee cannot stack 26 weeks of military caregiver leave with twelve weeks of another type of FMLA leave, such as military exigency leave, totalling 38 weeks of leave in all. Only 12 of the 26 week FMLA leave total may be for a reason other to care for a covered service member. Thus an employee could take 16 weeks of leave to care for a service member, and 10 weeks to care for a new baby. However, he/she could not take more than 12 weeks to care for a baby even if he/she does not use all of his/her 26 weeks allowable to care for a service member.
If leave would qualify as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during a ''single 12-month period'' the employer must designate it as leave to care for a covered servicemember in the first instance. Leave that qualifies as both types of leave cannot be designated and counted as both types of leave.
To be entitled to leave, an employee need not show that he/she is the only person available to care for the servicemember, just as such a showing need not to made to take leave to care for a seriously ill non military family member. Military caregiver leave can be taken intermittently if the medical need can be best accommodated through an intermittent or reduced leave schedule. Employees seeking this type of leave for planned medical treatment must provide 30 days advance notice. If the need for such leave is foreseeable, but not 30 days in advance, the employee must give as much notice as practicable—generally either the same or the next business day as the need for leave becomes known.
The regulations also provide a detailed definition as to who qualifies as the "next of kin" entitled to take leave to care for a covered servicemember. The ''next of kin" of a covered servicemember' is the nearest blood relative, other than the covered servicemember's spouse, parent, or child, in the following order of priority:
- blood relatives who have been granted legal custody of the servicemember by statute or court decree, 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. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, (e.g., three brothers), all such family members are considered the covered servicemember's next of kin, and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When the servicemember has designated a particular blood relative as his next of kin, that person is deemed to be his only next of kin. An employer is permitted to require an employee to provide confirmation of that he has a covered family relationship to the covered servicemember.
The Department of Labor has issued a new certification form for employers to use to determine if an employee qualifies for this type of leave. There is a detailed regulation which provides exactly what information the employer can seek. Employers are not required to, but would usually be well advised to, use the DOL form. Employers cannot seek any information other than what is on the form. If the employee fails to provide complete and sufficient certification information in response to the employer's request, leave can be denied. Second and third opinions and recertifications are not permitted in relation to a covered servicemember's serious illness or injury.
B. Leave Taken for Military Exigencies
A covered employee must be granted up to 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave (eg, calendar year, rolling year) for "qualifying exigencies" arising from the employee's spouse, child, or parent being on active duty, or being notified of an impending call or order to active duty, in support of a "contingency operation". This type of leave is limited to family members of military members in the National Guard or reserves only, not in the regular Armed forces.
Qualifying exigencies include:
Issues arising from a covered military member's short notice deployment (i.e., deployment on seven or fewer days of notice).Leave taken for this purpose can be used for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty in support of a contingency operation;
Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs, and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross, that are related to the active duty or call to active duty status of a covered military member;
Certain childcare and related activities arising from the active duty or call to active duty status, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child to a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty;
Making or updating financial and legal arrangements to address a covered military member's absence;
Attending counseling provided by someone other than a health care provider for the employee, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status;
Taking up to five days of leave to spend time with a covered military member who is on short term temporary, rest and recuperation leave during deployment;
Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status, and addressing issues arising from the death of a covered military member;
Any other event that the employee and employer agree is a qualifying exigency.
Military exigency leave may be taken intermittently. An employee must give notice of the need to use exigency leave as soon as practicable. Employers may require that an employee's request for military family leave be supported by an appropriate certification. An employer may require that:
- leave for a qualifying exigency be supported by a copy of the covered military member's active duty orders and certification providing the appropriate facts related to the particular qualifying exigency for which leave is sought, including contact information if the leave involves meeting with a third party.
The Department of Labor has issued a certification form that employers may use—and would usually be well advised to use-- for this type of leave. Second and third opinions and recertifications are not permitted in relation to militery exigency leave.
II. THE NEW NON-MILITARY FMLA REGULATIONS
The Department of Labor also made a number of non-military related revisions to the FMLA regulations, to simplify, clarify and improve them, reacting in particular to the many public comments it received. Some of the most important revisions are as follows:
A. New Employer FMLA Notice Requirements
A recent DOL FMLA report described studies which showed that 40% of covered employees still did not know of the FMLA, or of its applicability to them, or of their right to take intermittent FMLA leave. So the new regulations include some expanded employer notice requirements. Covered employers must post on their premises, in conspicuous places "where employees are employed", a notice explaining the FMLA. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. Electronic posting is sufficient to meet this requirement. Covered employers must post this general notice even if none of its employees are eligible for FMLA leave. The Dept. of Labor has issued a new FMLA notice for employers to post, which employers would generally be well advised to use.
If a covered employer has any eligible employees, it also must give this general notice to each employee by including it in an employee handbook or other written guidance or by distributing a copy each new employee upon hiring. (The italicized portion is what is new).In either case, distribution may be accomplished electronically. (Remember that if an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer must provide the general notice in a language in which the employees are literate).
Eligibility notices. When an employee requests FMLA leave, or when the employer learns that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of his/her eligibility to take FMLA leave within five business days, absent extenuating circumstances. The DOL has issued a new notice for this purpose that employers would generally be well advised to use. The notice advises employees whether they would be potentially eligible for FMLA leave (eg, have they worked a sufficiently long for the employer), describes some of their FMLA rights and responsibilities, and describes any certifications or other documentation they must provide to demonstrate their eligibility for FMLA leave. The DOL has provided four new types of Certification forms for employers to give to employees, depending on the type of leave the employee seeks.
Designation notice. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and counted as FMLA leave, within five business days absent extenuating circumstances. The DOL has issued a Designation notice which contains the permitted and required entries, which an employer would generally be well advised to use.
Retroactive designation/Penalties for failure to provide timely notices. In response to a previous US Supreme Court decision (Ragsdale v. Wolverine Worldwide, Inc.), failure to provide timely notices no longer automatically means that the leave can't be counted against the employee's FMLA leave allotment, but the employer may be held legally responsible for any losses an employee suffers as a result of its failure to provide timely notice. If an employer fails to designate leave as FMLA qualifying, it may retroactively designate leave by providing a designation notice to the employee, as long as the employer's failure to timely designate leave does not cause harm or injury to the employee.
B. Expanded Employee Notice Requirements
The new regulations continue to require that an employee provide the employer at least 30 days advance notice before FMLA leave is to begin, if the need for the leave is foreseeable 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. The regulations also continue to require that if 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will need to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. The new regulations provide an expanded employee obligation: in circumstances in which 30 days notice is required and the employee fails to provide such notice, the employee must explain to the employer upon request the reason that 30 days notice was not practicable.
• Language regarding consequences for failure to provide sufficient notice of forseeable leave has been expanded. The regulations now provide that if the need for FMLA is not foreseeable 30 days in advance, and the employee fails to give notice as soon as practicable, the extent to which the employer may delay FMLA coverage for leave depends on the facts of the particular case. For example, if an employee reasonably should have given the employer two weeks notice but instead provided only one week of notice, the employer may delay FMLA-protected leave for one week. Thus, if the employer elects to delay FMLA coverage and the employee still takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave would not be FMLA protected.
Similarly, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arose, consistent with the employer's absence notice policy, but instead the employee provided notice two days after the leave began, the employer may delay FMLA coverage of the leave by two days.
However, because important rights may turn on this fact specific determination, employers should probably consult their employment counsel before deciding to delay or deny FMLA leave due to late notice.
The new regulations appear to expand the extent of the information an employee must provide when giving notice of the need for leave. The regulations now state:
"An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA qualifying leave, and the anticipated timing and duration of the leave. Depending on the situation, such information may include that a
condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care 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 that the requested leave is for one of the
reasons (that qualify as an "exigency)"; if the leave is for a family member, that the
condition renders the family member unable to perform daily activities, or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known."
However, in general, it does not seem that an employer could deny FMLA protection without making an effort to obtain more information from the employee about whether FMLA covered leave is being sought, and to obtain the necessary details of the leave to be taken. A new provision does state, however, that an employee must respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA qualifying.
Another new requirement is that if the employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the
employee must specifically refer to the qualifying reason for leave or the need for FMLA leave. Under these circumstances, the new regulations state, "calling in sick without providing more information will not be considered sufficient to trigger an employer's obligations under the (FMLA)". The DOL apparently concluded that once an employee has gone through the FMLA notice and designation procedure once, more can reasonably be required from him/her as to notice of the FMLA qualifying reason for leave.
Another significant new provision is that the employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that
written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an
employer's policy to contact a specific person, such as a supervisor. "Unusual circumstances" would include situations when an employee is unable to contact the designated person because the phone isn't answered and the voice mail box is full. When an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. However, FMLA protected leave may not be delayed or denied when the employer's policy requires notice to be given sooner than would be deemed practicable under the FMLA regulations. The regulations state, though, that it generally should be practicable for the employee to provide notice of unforeseeable leave within the employer's usual notice requirements. Among the main reasons for this new requirement probably is to allow employers to control potential FMLA leave abuse, such as employees who call in for FMLA leave only when they realize that they have overslept or are otherwise going to be late, or who call in to a coworker friend rather than talking to his/her supervisor.
In addition to allowing the employer to deny or delay FMLA leave, the regulations state that an employer "may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave, and the rules are not inconsistent with the FMLA requirement that employees be permitted to give such notice as is practicable under the circumstances. Employers who don't have established absence and tardiness notice rules may want to consider adopting some if they feel the need to protect against this type of abuse.
Although these provisions provide some new protections for employers, employers would be well advised to tread cautiously and consult employment counsel before delaying or denying leave on the basis of these new protections.
C. The Narrowing of Certain Aspects of the Definition of "Serious Health Condition"
The definition of serious health condition remains essentially the same, but with a few clarifications that narrow certain aspects of the definition. Briefly, a "serious health condition" is essentially an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee's job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider, or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.
The major new clarifications of this definition are as follows:
1. One of the definitions of "serious health condition" involves more than three consecutive, full calendar days of incapacity plus "two visits to a health care provider." The new regulations specify that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within seven days of the first day of incapacity.
2. A second way to satisfy the definition of "serious health condition", under the original regulations, involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The new regulations clarify that the first visit to the health care provider must take place within seven days of the first day of incapacity.
3.The new regulations defines "periodic visits" for chronic serious health conditions as at least two visits to a health care provider per year. Because that provision was left open in the original regulations, the DOL was concerned that employers could potentially require employees to have two visits during a period of time shorter than a year.
D. New FMLA FMLA Leave Certification Rules
The new regulations provide that if an employer is going to seek a certification of the need for FMLA leave, the request for certification in most cases should be made when the employee gives notice of the need for leave, or within 5 business days thereafter, or, in the case of unforeseeable leave, within 5 business days after leave begins. (It is the 5 day period that is new in the new regulations). The new regulations further state that the employee must provide the requested certification to the employer within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts. The new regulations also further spell out the employee's obligation to provide a complete and sufficient certification. The employer must advise an employee if it finds a certification incomplete or insufficient, and must state in writing what additional information is necessary to
make the certification complete and sufficient. A certification is considered "incomplete" if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered "insufficient" if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.
The employer must give the employee seven calendar days to cure any such deficiency unless it is not practicable for the employee to comply in seven days despite the employee's diligent good faith efforts. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave.
It continues to be true that if an employee submits a complete and sufficient certification signed by his/her health care provider, the employer may not request additional information from
the health care provider. However, the employer may contact the health care provider to clarify and authenticate a medical certification, after the employer has given the employee an opportunity to cure any deficiencies. ''Authentication'' means giving the health care provider a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed it; no additional medical information may be requested. ''Clarification'' means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form. In accordance with HIPAA medical privacy requirements, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official to contact the health care provider for authentication or clarification. "Under no circumstances", the regulations state, may the employee's direct supervisor do so. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear.
It is still generally the rule that employers can request a recertification no more often than every 30 days, and only in connection with an absence of the employee. However, if the medical certification indicates that the minimum durration of the condition is more than 30 days, the employer generally must wait until that minimum time expires before requesting a recertification. However, the new regulations provide some new exceptions to these general rules. First, in all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request
recertification every six months in connection with an absence. An employer can also request a new medical certification each leave year for conditions that last more than one year.
E. Light Duty Rule Clarification
A couple of courts had interpreted the FMLA to mean that an employee uses up his or her 12 week FMLA leave entitlement while on a "light duty" assignment following FMLA leave. The new regulations clarify that time voluntarily spent by an employee in performing "light duty" work does not count against his/her FMLA leave entitlement. The employee's right to restoration is held in abeyance during the time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).
F. The Simplification of the Rules Regarding Substitution of Paid Leave for Unpaid FMLA Leave
The old rules rules regrding substitution and concurrent running of paid leave for unpaid FMLA were quite complicated. The new greatly simplified rule provides as follows: An employee may choose, or an employer may require, the substitution of accrued paid leave for unpaid FMLA leave. The term ''substitute'' means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, runs concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer's applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee's ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy. When an employee chooses, or an employer requires, substitution of accrued paid leave, "the employer must inform the employee that he/she must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment". If an employee does not comply with the additional requirements in an employer's paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.For example, an employer could not impose a more arduous STD qualification procedure on employees who seek such benefits during FMLA leave.
G. Perfect Attendance Bonuses
A controversial requirement of the old rules has been eliminated. An employer no longer need disregard the taking of FMLA leave in determining an employee's eligibility for a perfect attendance bonus.
H. FMLA Eligibility Determination Rules
The new regulations provide that in determining whether an employee has worked for the employer for at least 12 months, one of the FMLA leave eligibility criteria, employers must remember that the 12 months need not be 12 consecutive months. However, time worked prior to a seven year break in service need not be considered, unless the employee's break in service is
occasioned by the fulfillment of his/her National Guard or Reserve military service obligation. The time served performing the military service must also be counted in determining whether the employee has been employed for at least 12 months by the employer. So if the employee has worked for the employer for 2 months, and then performs 12 months of National guard service, returns for a week, and then seeks FMLA leave, the employee would be deemed to have worked for the employer for 12 months.
I. Overtime and Intermittent Leave
The new regulations contain an interesting new rule with regard to overtime work that an employee is unable to perform due to a serious health condition. If an employee would normally be required to work overtime, but is unable to do so because of a FMLA-qualifying reason that limits the employee's ability to work overtime, the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement. In such a case, the employee is using intermittent or reduced schedule leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize eight hours of FMLA-protected leave out of the 48-hour workweek (8⁄48 = 1⁄6 workweek). Voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee's FMLA leave entitlement.
III. WHAT EMPLOYERS SHOULD OR MAY WISH TO DO IN RESPONSE TO THESE NEW REGULATIONS
Employers should familiarize themselves and their HR/ managerial/supervisory personnel of the many new changes in the FMLA regulations. They should also become familiar with and begin using the new forms. In addition, they should post the new FMLA poster in a conspicuous place or places where employees and applicants can readily see it. They must also provide the new notice in their handbook or other guidance, and/or give a copy to all new hires. Other policies in the handbook may well need to be revised to bring them into accord with new FMLA leave rules, such as the new military requirements and changes in other rules, such as light duty and perfect attendance bonuses. Employers may also want to establish or change their rules as to the time and manner in which employees are required to give notice of tardiness or absence, if they feel a need to protect themselves against FMLA leave abuse.
Employers should also tread cautiously in exercising some of the new protections provided by the amended regulations, seeking advice from employment counsel to be sure that a decision to delay or deny leave rests on solid legal ground.
THIS MEMORANDUM IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL
ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO
CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE
EMPLOYMENT ATTORNEY.
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