New Family and Medical Leave Act Developments
By: KRISTA A.P. HATCHER
March 2008
The Family and Medical Leave Act (FMLA) has been the source of considerable discussion and much angst as employers try to comply with its intricate regulations and an array of court decisions that aren’t always consistent. This year has seen the most significant changes and proposed changes to the FMLA in the 15 years since the law was enacted.
FMLA was passed in 1993. This complex law applies to employers of 50 or more employees and requires that eligible employees receive up to 12 weeks of unpaid leave in a 12-month period for:
- The birth of a child,
- The placement of a child for adoption or foster care,
- The need to care for family members with serious health conditions, and
- The employee’s own serious health condition.
A New Category of Leave: Servicemembers
On January 28, 2008, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (NDAA). The NDAA addressed the needs of servicemembers and their families by amending the FMLA in two ways:
- Creating leaves of up to 26 weeks for family members caring for servicemembers recovering from a serious illness or injury, and
- Creating leaves up to 12 weeks for any “qualifying exigency” because an employee’s family member is on active duty.
1. Servicemember Family Leave
Effective January 28, 2008, the “spouse, son, daughter, parent, or next of kin of a covered servicemember” is entitled to a total of 26 workweeks of leave during a single 12-month period to care for a servicemember who has suffered serious injury or illness in the line of duty. The law defines a “covered servicemember” as a member of the Armed Forces, 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.” A “serious injury or illness” is defined as “an injury or illness incurred by the member in the line of duty while on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.” The law defines “next of kin”—a new category of covered employee—as the “nearest blood relative” of the servicemember. Where the need for servicemember family leave is foreseeable, the employee must provide at least 30 days’ notice. Eligible employees are entitled to a combined total of up to 26 weeks in a 12-month period for all types of FMLA leave.
The law is currently in effect. The Department of Labor (DOL) has indicated that it is working on regulations to provide more comprehensive guidance on this leave but requires employers to “act in good faith in providing leave” under the new law in the meantime.
2. “Qualifying Exigency” Leave
The NDAA also allows an eligible employee to take up to 12 weeks leave in any 12-month period because of a “qualifying exigency” that arises “out of the fact that the spouse, a 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 a contingency operation.” The law defines a “contingency operation” as a military operation in which members of the Armed Forces may be called to action against an enemy of the United States. It further states that when an employee requests leave for a qualifying exigency and the necessity for leave is foreseeable, the employee must provide the employer with “reasonable and practicable notice” of the need for leave and that the employer may require that a request for leave for a qualifying exigency be supported by a certification that the servicemember is on or has been called to active duty.
However, the NDAA does not define a “qualifying exigency,” leaving that task to the Secretary of Labor. This provision of the NDAA is not effective until the DOL issues final regulations defining “qualifying exigency.” The DOL has stated that it is “expeditiously preparing” regulations to implement this new type of leave and encourages employers to provide the leave to qualifying employees in the interim. It has expressed the initial view that some nexus must be between the eligible employee’s need for leave and the servicemember’s active-duty status, but how that will be interpreted in the final regulations remains to be seen.
Takeaway
Despite the uncertainties surrounding the servicemember leave, we advise covered employers to notify employees that servicemember leave is available in appropriate circumstances. A poster is available for these purposes at the DOL Web site. Employers should also comply with the new law’s requirements in good faith, considering requests on a case by case basis until the regulations are finalized.
DOL’s Proposed FMLA Regulation Revisions
The DOL also recently released long-awaited proposed revisions to the current FMLA regulations. The proposed regulations are open for public comment for 60 days, until April 11, 2008. The DOL has also requested comments on the NDAA amendments to the FMLA for leave for servicemembers’ family.
Some of the revisions would substantially alter current FMLA procedures, but employers looking for significant guidance on intermittent leave or the definition of a “serious health condition” will be disappointed. The proposed changes and commentary are more than 100 pages long and can be found at http://www.dol.gov/whd/FMLANPRM.htm. They address a wide range of topics, including required notices, light duty, the definition of “serious health condition,” overtime, bonuses, the consequences of failing to designate leave as FMLA, the voluntary settlement of claims, and other matters.
Some of the key revisions are:
Employee Eligibility. The DOL’s proposals address the issue of whether an employee’s 12 months of employment for eligibility purposes must be consecutive or includes periods of prior employment, a subject that has been litigated with inconsistent results. Under the proposed regulations, the 12-month period need not be consecutive, but employers must count employment prior to a break in service lasting less than five years. The proposed regulations also provide that military service can satisfy the 1,250-hour requirement.
Light Duty. Under the current regulations, light-duty time can be counted against an employee’s 12 weeks of FMLA leave. Under the proposed regulations, periods of light-duty work do not count against an employee’s 12 weeks of FMLA leave.
Medical Certifications. Under the proposed regulations, employers would have five days to request medical certification of the need for leave. Employers who find an employee’s medical certification to be incomplete must describe the deficiencies in writing and allow the employee seven days to remedy the deficiency. Under the current regulations, only a physician hired by the employer may directly contact an employee’s health care provider, but the DOL’s changes would permit employers to directly contact an employee’s health care provider to seek “clarification and authentication” of medical certifications. The DOL also proposed changes to the WH-380 certification form to require more information from the health care provider.
Fitness-for-Duty Certification. Under the current regulations, a fitness-for-duty certification need only be a “simple statement.” The proposed regulations would delete the “simple statement” language, leaving only the statutory requirement that the employee must obtain a certification from his or her health care provider that the employee is able to resume work. Under the proposed regulations, an employer could require that an employee’s health care provider certify that the employee is able to perform the functions on a list of essential job functions provided by the employer. In a proposal addressing intermittent leave, the regulations would permit employers to require employees to provide a fitness-for-duty certification every 30 days if the employee has used intermittent leave during that period and if reasonable safety concerns exist.
Employer Notice Requirements. The DOL has proposed changes to notice requirements for both employers and employees. For employers, the DOL developed a “general notice” to be used by employers to inform employees generally of their FMLA rights. Additionally, the proposed regulations require employers to notify employees of their eligibility for leave within five business days of receiving a request for leave. The regulations would also require employers to notify employees that leave is being designated as FMLA leave within five days after receiving sufficient information to make such a determination. An employee may have a claim for interference with, restraint of, or denial of the use of FMLA leave if his or her employer fails to timely comply with the notice designation requirements.
Employee Notice Requirements. The proposed regulations state that when an employee learns of the need for leave less than 30 days in advance, the employee must give notice the same or the following day, absent emergency circumstances. For unforeseeable leave requests, the employee must provide notice to the employer no later than the start of the employee’s shift. The DOL’s proposals would permit employers to require employees to follow established call-in procedures consistent with the regulations. Failure to properly notify an employer, absent unusual circumstances, could result in a delay or denial of FMLA protection.
Waiver of FMLA Claims. The proposed regulations would permit employers and employees to voluntarily agree to the settlement of past FMLA claims without court or DOL approval, an issue that has resulted in inconsistent results by the courts and is currently pending before the U.S. Supreme Court. The restriction against the prospective waiver of FMLA claims is unchanged.
Takeaway
The DOL’s proposed FMLA regulations are not yet final and may not be for months. Employers should wait for the changes to become effective before changing or amending policies. Employers who want to comment on the proposed regulations either individually or through trade associations should submit their comments to the DOL by Friday, April 11, 2008. The DOL explains the process for doing so at http://www.dol.gov/whd/FMLANPRM.htm.