Articles

FAMILY MEDICAL LEAVE ACT ALERT

Denise Y. Tataryn

The Department of Labor published new regulations, effective January 16, 2009, on the Family and Medical Leave Act. New regulations were issued to implement the amendments to the FMLA that were enacted as part of the National Defense Authorization Act for 2008, as well as to update and clarify the existing regulations.

The FMLA provides leave entitlement to eligible employees up to 12 weeks of unpaid, job-protected leave, per 12-month period. Leave may be taken for birth or placement for adoption or foster care of a child; the serious health condition of the employee's spouse, son, daughter, or parent; or the serious health condition of the employee that makes the employee unable to perform the functions of the employee's job. The new regulations clarify that both spouses may each take a full 12 weeks of leave to care for a child with a serious health condition regardless of whether the spouses work for the same employer. The same is true for leave to care for a family member.

The amended FMLA and revised regulations now also allow eligible employees military caregiver leave and qualifying exigency leave. Military caregiver leave permits an employee who is a spouse, son, daughter, parent, or next of kin of a service member with a serious injury or illness to take a combined total of 26 workweeks of unpaid leave during a single 12-month period. A serious injury or illness is one that has been incurred by the covered service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating. Qualifying exigency leave permits an eligible employee to take protected, unpaid leave for a period up to 12 work weeks for any "qualifying exigency" arising out the fact that the employee's spouse, child, or parent is on active duty or called to active duty in support of a "contingency operation." Qualifying exigency leave includes short notice deployment, military events and related activities, childcare and school activities-arranging childcare who are incapable of self-care because of mental or physical disability, and other child-care reasons, making or updating financial and legal arrangements, attending counseling if need for counseling arises from active duty or call to active duty, spending time with covered military member of short-term, temporary rest and recuperation leave during deployment, post-deployment activities, and other activities that arise out of a covered military member's active duty or call to active duty.

Under the FMLA, employers have four main types of notice requirements: General Notice, Eligibility Notice, Rights and Responsibilities Notice, and Designation Notice. Failure to provide the notices required may constitute interference with an employee's FMLA right and give rise to liability for compensation, benefits, or other monetary losses sustained as a direct result, or other equitable relief. The new regulations significantly change the way in which employers process requests for leave.

The General Notice must explain the FMLA's provisions and provide information on how to file complaints of FMLA violations with the DOL. All covered employers (those who employ 50 or more employees) must post the General Notice regardless of whether any of their employees are FMLA eligible. The new regulations permit electronic posting, such as on the employer's website. Covered employers must also distribute the General Notice to employees. This may be done by including the notice in the employer's handbook.

An employer must provide an Eligibility Notice within 5 days of an employee's request for FMLA leave or within 5 days of an employer's knowledge that an employee's leave may qualify for FMLA. The old regulations only allowed an employer 2 days to provide this notice. The Eligibility Notice must state whether the employee is eligible for leave. The new regulations require that if an employer determines that the employee is not eligible, the Notice must also inform the employee of at least one reason why the employee is not eligible. To be eligible, employees must have been employed with that employer for at least a total of 12 months and have worked at least 1,250 hours in the 12 months immediately preceding the leave.

The Rights and Responsibility Notice must be provided to an employee each time an Eligibility Notice is given to an employee. This Notice must detail the specific expectations and obligations of the employee and must explain any consequences for a failure to meet those obligations.

A Designation Notice must be provided to an employee within 5 business days of when it has enough information to determine whether the employee is taking leave for a FMLA-qualifying reason. The Notice must notify the employee that the leave will or will not be designated as FMLA-qualifying leave; the amount of leave counted against the employee's FMLA leave entitlement; if the employer requires paid leave to be substituted for unpaid leave or that paid leave under a different leave plan be counted as FMLA leave; and the new regulations provide that if the employer requires a fitness-for-duty certification prior to returning to work, the employer must provide written notice of that requirement or verbal notice if notice is provided in a written policy, and the employer must include a list of the essential functions of the employee's position. The new regulations also provide that if the information in the Designation Notice changes, the employer must provide written notification of the change to the employee within 5 business days of receipt of the employee's request for leave subsequent to the change.

Sample Notice forms are available on the Department of Labor, Wage and Hour Division's website at: http://www.wagehour.dol.gov/.

Employees also have responsibility to provide certain notices. The most obvious is that an employee must provide an employer with sufficient information so the employer knows the employee may be in need of FMLA leave. Calling in sick, without providing more information, is not enough to trigger an employer's obligations under the FMLA. An employee must provide an employer with at least 30 days of advance notice if the need for the leave is foreseeable. Under the new regulations if the employee does not do so, the employee must explain the reasons why such notice was not practicable upon a request from the employer. If the leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. If the requested leave is for a previously certified FMLA condition, an employee is now required to inform his or her employer of that fact.

When requesting intermittent or reduced-schedule leave, the employee must advise the employer of the reasons why the leave is necessary and of the schedule for treatment, if applicable, when making the request for intermittent or reduced-schedule leave.

The new regulations make several changes to the certification process. For example, an employee now has seven days of the first day of incapacity for the first visit to the provider. The provider no longer has to check which type of qualifying leave the individual has. It is up to the employer to determine whether the facts provided qualify as a serious health condition. If the leave is foreseeable, the employee must provide the certification before the leave begins. The new regulations expand the type of information an employer can require in the certification. An employer can now request recertification at least every 6 months. Employers are advised to use the new medical certification forms provided by the Department of Labor.

An employer may now delay or deny FMLA leave to an employee who unjustifiably fails to comply with the employer's usual and customary notice and procedural requirements for requesting leave. Also an employer may now deny FMLA protection if an employee fails to respond to an employer's reasonable inquiries designed to determine whether requested leave is FMLA-qualifying and the failure prevents the employer from being able to make a determination.

An employee must provide notice of the need for qualifying exigency leave as soon as practicable, regardless of how far in advance such leave is foreseeable. To request exigency leave, an employee must provide sufficient information to indicate that a family member is on active duty or call to active duty status.

The above discussion is intended to be a summary of the new FMLA regulations, and is not intended to be a complete discussion of all the requirements under the FMLA or the new regulations. It is recommended that employers and employees seek the advice of an attorney or trained specialist when faced with FMLA leave issues. For more information, contact Denise Tataryn at 612-339-4295, or http://www.dtataryn@mansfieldtanick.com/.