A review of the new FMLA regs

OK, so review of the rewritten and reorganized Family and Medical Leave Act (FMLA) regulations took a lot longer than anticipated!

But having done so, what is important for you to know?  First, I want you to memorize (ok – read) this WH Publication 1420 and the Final Rule document.  These provide the DOL’s overview of the Act and the first document is also something you as an employer are required to post so that employees know their rights.  If you read it, know it, and understand it, it’s all the more helpful when employees come to you with questions.

Second, please note that the following information cannot attempt to address all of the revisions to the FMLA.  Instead, it can provide an overview of the significant changes that you as an employer need to be aware of.  Specifically, you should note that as of January 16, 2009, you should post the new FMLA notice, revise your handbooks and/or policy manuals to incorporate the new changes, and be prepared to respond to certain leave requests by following the new procedures and using the new notice (Appendix C, D, and E) and certification forms (Appendix B, G, H of the new regs).

New FMLA Regulations - Update Monday, November 17, 2008 (.pdf format)

Appendix B - see page 183 - 190
Appendix C - see page 191
Appendix D - see page 192-193
Appendix E - see page 194
Appendix G - see page 195-198
Appendix H - see page 198-201

So, let’s look at some of the changes…

Military Caregiver Leave and Leave for “Qualifying Exigencies”
Since January 2008, these two amendments to the Act have created two new types of leave for employees who have family members in the armed services.  Now, the FMLA authorizes eligible employees to take protected FMLA leave to: (1) care for a family member with a serious injury or illness incurred while on active duty (i.e., the caregiver leave provision) and, (2) deal with any “qualifying exigency” arising from a family member’s active duty or imminent call to active duty status.

Employer Posting Requirements
Every employer covered by the FMLA must post a notice explaining the FMLA provisions.  Conveniently, the DOL has now consolidated all employer notice requirements under one section (§825.300) and three (3) employer notices are now required: (1) a new poster, replacing the one issued in 1995; (2) a new Notice of Eligibility and Rights and Responsibilities form, which along with portions of new Form WH-382, replaces the current Form WH-381, and (3) a new form called Designation Notice, which is Form WH-382 (Appendix C, D, and E of the new regs). The regulations specify when and how these notices must be distributed to employees, and what penalties may be imposed in the event the employer fails to comply with the notice requirements.

Eligibility
To determine whether an employee has been employed by an employer for at least 12 months and has worked at least 1,250 service hours, the DOL made the following minor changes or clarifications:

• The 12 months of employment need not be consecutive, but employers need not count a break-in-service of seven years or more in determining whether an employee has been employed for at least 12 months. This is a change from the proposed rule issued in February 2008, which provided that the break-in-service would be five years.  There are two exceptions to this rule: 1) an employee’s fulfillment of his/her military obligations, and 2) a period of approved absences 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. If either circumstance exists, the employee’s prior employment would count towards the 12 months of employment regardless of how much time has lapsed between the two periods of employment.
• In order to comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA), time spent fulfilling an employee’s military service obligations (National Guard or Reserve) is counted toward the employee’s 1,250-hour and 12-month requirements.
• An employee who is not eligible for FMLA protection at the beginning of his or her leave, may begin FMLA once he/she has met eligibility requirements. The revised regulation does not eliminate the requirement that an employee may apply time spent on vacation or sick leave towards the 12-month requirement, provided that he/she remains on the employer’s payroll and is receiving other benefits.

Serious Health Condition
Despite requests to the contrary, the DOL did not overhaul the basic definition of “serious health condition” and it still includes the list of conditions outlined in § 825.114 of the current Act.  The DOL did, however, provide some clarification with respect to what is meant by “continuing treatment.”  Now, in order to satisfy the “continuing treatment” requirement, an employee:

• Must visit a health care provider two times within 30 days of the first day of incapacity, unless extenuating circumstances exist that prevent a follow-up visit.
• Must see a health care provider within seven days of the first day of incapacity.
• With a chronic serious health condition, must visit a health care provider at least twice a year.

Still, we expect this clarification to lead to problems for employers since an employee now has up to 30 days to either receive treatment a second time from a health care provider or to have a regimen of continuing treatment following the first treatment by the health care provider.

More Time to Make FMLA-Related Determinations
Once you as an employer have obtained sufficient information to determine whether an employee’s leave will be protected by the FMLA, you have five (5) business days to notify the employee of the designation (note, this is a change from the current requirement of two business days).  Failure to provide the required written notice may constitute “interference” with an employee’s FMLA rights and may lead to expanded potential damages.

Issues Related to Settlement of FMLA Liability Claims
Under the new regs, employees may voluntarily settle their FMLA claims without court or Department approval; however, prospective waivers of employee FMLA rights continue to be prohibited.  As a result, employers want to take care that any general releases drafted for settlement include, but are limited to, waivers for past FMLA claims.

Prepare for January 16th
Contact your counsel of choice and get ready for these changes!  You should revise your FMLA policies and procedures for administering FMLA leaves in light of the new regulations defining family military leaves and the new DOL recommended forms and processes.  Consider training your HR professionals and front-line managers to educate them about the changes and what it may mean in the days and months ahead.

Employers who are not able to revise their employee handbooks by January 16 should distribute to each employee a revised FMLA policy or notice.  Responses to leave requests submitted as of January 16 must reflect new FMLA procedures, including use of the new notice and certification forms.