Proposed Revisions To FMLA Regulations Are Issued
February 13, 2008
On Monday, February 11, 2008, the United States Department of Labor (“DOL”) issued proposed revisions to the regulations under the Family and Medical Leave Act. Public comment on the proposed changes may be submitted until April 11, 2008, after which the Department will issue final regulations.
The following is a brief summary of many of the DOL’s proposed changes and clarifications to the current FMLA regulations.
Employee Eligibility Requirements: Employment prior to a continuous break in service of five years or more need not be counted when determining whether an employee meets the 12 months of service requirement. Absences due to military service or approved leave pursuant to a written agreement that references the employer’s intent to rehire the employee do not qualify as a break in service.
Employees returning from service with the National Guard or Reserve must be credited with the hours they would have worked but for the military service when calculating whether the employee meets the 1250 hours of service requirement.
If an employee is on leave at the time he satisfies the 12-month eligibility requirement, the period of leave prior to meeting the requirement does not count as FMLA leave but the period after meeting the 12 month requirement will count.
Joint Employment: For purposes of determining whether an employer has 50 or more employees within a 75 mile radius, the “worksite” of employees from a temporary employment agency is the physical place where they work (as compared to, for example, the site of the temporary agency’s main facility), if the employee has worked at the site for at least one year.
The primary responsibility for reinstatement following leave rests with the staffing firm (the primary employer) and the client company must consent to the temporary employee’s reinstatement only if it has used another contract employee from the same staffing agency to temporarily fill the position during the FMLA leave.
Professional Employer Organizations (PEO’s) that contract with client employers merely to perform administrative functions (e.g., payroll) are not joint employers with their clients.
Health Care Provider: Physician’s Assistants are added to the definition of a “health care provider” for purposes of determining whether an employee is receiving “continuing treatment by a health care provider.”
Serious Health Condition: For an incapacity of over three days to qualify as a serious health condition based on “two visits to a health care provider,” the two visits must occur within 30 days of when the incapacity begins, absent extenuating circumstances.
To qualify as a chronic serious health condition, the condition must require “periodic visits for treatment.” “Periodic” is now defined to mean two or more visits to a health care provider each year.
Spouses Working for the Same Employer: The proposed regulations reemphasize that spouses who work for the same employer may each take 12 weeks of leave to care for a child with a serious health condition.
Definition of “Son or Daughter": The determination of whether a child 18 or over has a disability, and therefore qualifies as a “son or daughter” for purposes of FMLA leave, is to be made at the time leave commences. Facts and circumstances that occur after leave commences are not to be considered.
Evidence of Family Relationships: Evidence of a family relationship, for purposes of FMLA leave, can include a sworn, notarized statement by the employee or a tax return.
“Needed to Care For”: The DOL clarifies that an employee need not be the only individual or family member available to care for a qualified family member in order for the employee to take FMLA leave.
Holidays: If an employee needs less than a full week of FMLA leave, hours the employee does not work on a holiday that falls within that week are not counted as FMLA leave if the employee would not have otherwise been required to work on that day. The hours an employee does not work on a holiday that falls within a full week of leave will count against the employee’s FMLA entitlement.
Intermittent Leave: An employee who takes intermittent leave due to medical necessity must make a “reasonable effort” (as opposed to the current language which requires an “attempt”) to schedule the leave so as not to unduly disrupt the employer’s operations.
Overtime: An employee limited to working 8 hours a day or 40 hours per week due to a serious health condition has a right not to work overtime and is on an FMLA reduced leave schedule. If the employee would be required to work overtime hours but for the FMLA leave, the missed overtime hours can be counted as FMLA leave.
Substitution of Paid Leave: The terms of an employer’s paid leave policy must be followed by an employee in order to substitute any form of accrued paid leave (including PTO, sick, vacation and personal) for unpaid FMLA leave. For example, if a vacation policy prohibits the use of vacation in less than full day increments, employees do not have a right to vacation pay for FMLA leave of less than one day. Similarly, if a personal leave policy requires two days advance notice, an employee must provide the required notice in order to substitute the paid leave for unpaid FMLA leave.
Notice regarding an employee’s eligibility for FMLA leave (see “Employer Notice Obligations,” below) must include any requirements that apply to the use of paid leave and inform the employee that he remains eligible for unpaid FMLA leave even if he chooses not to meet the terms of the employer’s paid leave policies.
Compensatory time accrued by public agency employees under the FLSA can run concurrent with unpaid FMLA leave.
Health Insurance: The proposed regulations clarify that if an employer allows an employee’s health coverage to lapse due to the employee’s failure to pay premiums during FMLA leave, the employee’s coverage must be reinstated when the employee returns to work.
Perfect Attendance Bonuses: Employers may disqualify employees who take FMLA leave from receiving a perfect attendance bonus if it treats employees who take other forms of non-FMLA leave in the same manner.
Light Duty: Employees are not required to accept light duty in lieu of taking FMLA leave and time spent working light duty jobs does not count as FMLA leave.
Waivers: The prohibition on waiving FMLA rights only applies to waiving prospective rights. Employees and employers may voluntarily agree to settle past claims without first obtaining the permission of the DOL or a court.
Employer Notice Obligations: An employer’s notice obligations are divided into three primary sections: (1) “general notice;” (2) “eligibility notice;” and (3) “designation notice.”
Employee Notice Obligations: Employees who fail to give 30 days advance notice can be required to explain why giving 30 days notice was not practicable. Absent an emergency, an employee who is unable to give 30 days advance notice is expected to give notice of the need for leave either the same day the employee learns of the need for leave (if during working hours) or the next business day.
When requesting leave, an employee must give sufficient information to indicate: (1) he is unable to perform the functions of his job (or that a covered family member is unable to participate in daily activities); (2) the anticipated duration of the absence; and (3) whether the employee (or family member) intends to visit a health care provider or is receiving continuing treatment.
Absent unusual circumstances, employees can be required to follow established call-in procedures (except ones that have more stringent timing requirements than the regulations). This includes, for example, the requirement that the employee call a particular number or supervisor to report an absence. However, if an employee is hospitalized and a spouse calls the wrong person or number, for example, to report the absence, the employee may not be penalized.
The DOL acknowledges that the need for prompt notice of the need for leave is heightened when the need for leave is not foreseeable and expects that in “all but the most extraordinary circumstances, employees will be able to provide notice to their employers of the need for leave at least prior to the start of their shift.”
Calling in “sick” is not sufficient. If an employee’s condition deteriorates over a period of time, the employee must provide the employer with additional information needed to determine if the serious health condition standard is met.
Medical Certification: Employers have five days to request certification after learning of the need for leave. [Appendix B]
A certification is inadequate if the information provided is “vague, ambiguous or non-responsive.” Employees must be given the opportunity to correct such deficiencies. This does not apply where the employee fails to timely submit any certification.
Health care providers must indentify any pertinent specialization and their fax number on certifications. The certification form can request a diagnosis but if a diagnosis is not given and the form still provides sufficient information to qualify the absence as FMLA leave, then the employer cannot insist on a diagnosis.
Employers are not required to obtain the employee’s permission prior to contacting a health care provider to authenticate that a certificate was authorized by a health care provider and has not been altered. (The DOL quoted comments submitted by Taft’s Labor and Employment Department with respect to this change and the following section regarding HIPAA).
The proposed regulations also recognize that HIPAA adequately protects the privacy of employee medical information and therefore, an employer may directly contact an employee’s health care provider to clarify information in a medical certification. The employer must first give the employee an opportunity to correct any deficiencies in the certification. If HIPAA requires the employee’s consent for the release of information sought by the employer, the employee’s failure to give consent “may jeopardize his or her FMLA rights if information provided is incomplete or insufficient.” However, the DOL opines that employees may not be required to sign an authorization for the release of medical information as a blanket precondition of taking FMLA leave.
Recertification: Employers may request recertification every 6 months if a certification indicates the condition will last an extended time (e.g., one year) or states the duration is unknown, indefinite or for a “lifetime.”
The same rules that apply to employers contacting an employee’s health care provider regarding an initial medical certification (discussed above) apply to inquiries regarding recertification.
Amendment Relating to Military Service: With respect to the recent amendments relating to military service, the DOL requests comments on numerous issues but has yet to issue proposed regulations on these amendments. As reported previously, the amendment that provides 26 weeks of leave to care for a wounded or ill servicemember is currently in effect. In the absence of regulations, employers must make good-faith efforts to comply with this new leave requirement
The amendment that provides for 12 weeks of leave for a “qualifying exigency” arising out of a family member being called to active duty does not take effect until regulations are issued. However, comments by the DOL indicate that a “qualifying exigency” may include the need for leave to arrange for childcare, attend pre-deployment briefings and family support sessions, see a child or spouse off to service or welcome them back from service, or to make legal and financial arrangements.
The following is a brief summary of many of the DOL’s proposed changes and clarifications to the current FMLA regulations.
Employee Eligibility Requirements: Employment prior to a continuous break in service of five years or more need not be counted when determining whether an employee meets the 12 months of service requirement. Absences due to military service or approved leave pursuant to a written agreement that references the employer’s intent to rehire the employee do not qualify as a break in service.
Employees returning from service with the National Guard or Reserve must be credited with the hours they would have worked but for the military service when calculating whether the employee meets the 1250 hours of service requirement.
If an employee is on leave at the time he satisfies the 12-month eligibility requirement, the period of leave prior to meeting the requirement does not count as FMLA leave but the period after meeting the 12 month requirement will count.
Joint Employment: For purposes of determining whether an employer has 50 or more employees within a 75 mile radius, the “worksite” of employees from a temporary employment agency is the physical place where they work (as compared to, for example, the site of the temporary agency’s main facility), if the employee has worked at the site for at least one year.
The primary responsibility for reinstatement following leave rests with the staffing firm (the primary employer) and the client company must consent to the temporary employee’s reinstatement only if it has used another contract employee from the same staffing agency to temporarily fill the position during the FMLA leave.
Professional Employer Organizations (PEO’s) that contract with client employers merely to perform administrative functions (e.g., payroll) are not joint employers with their clients.
Health Care Provider: Physician’s Assistants are added to the definition of a “health care provider” for purposes of determining whether an employee is receiving “continuing treatment by a health care provider.”
Serious Health Condition: For an incapacity of over three days to qualify as a serious health condition based on “two visits to a health care provider,” the two visits must occur within 30 days of when the incapacity begins, absent extenuating circumstances.
To qualify as a chronic serious health condition, the condition must require “periodic visits for treatment.” “Periodic” is now defined to mean two or more visits to a health care provider each year.
Spouses Working for the Same Employer: The proposed regulations reemphasize that spouses who work for the same employer may each take 12 weeks of leave to care for a child with a serious health condition.
Definition of “Son or Daughter": The determination of whether a child 18 or over has a disability, and therefore qualifies as a “son or daughter” for purposes of FMLA leave, is to be made at the time leave commences. Facts and circumstances that occur after leave commences are not to be considered.
Evidence of Family Relationships: Evidence of a family relationship, for purposes of FMLA leave, can include a sworn, notarized statement by the employee or a tax return.
“Needed to Care For”: The DOL clarifies that an employee need not be the only individual or family member available to care for a qualified family member in order for the employee to take FMLA leave.
Holidays: If an employee needs less than a full week of FMLA leave, hours the employee does not work on a holiday that falls within that week are not counted as FMLA leave if the employee would not have otherwise been required to work on that day. The hours an employee does not work on a holiday that falls within a full week of leave will count against the employee’s FMLA entitlement.
Intermittent Leave: An employee who takes intermittent leave due to medical necessity must make a “reasonable effort” (as opposed to the current language which requires an “attempt”) to schedule the leave so as not to unduly disrupt the employer’s operations.
Overtime: An employee limited to working 8 hours a day or 40 hours per week due to a serious health condition has a right not to work overtime and is on an FMLA reduced leave schedule. If the employee would be required to work overtime hours but for the FMLA leave, the missed overtime hours can be counted as FMLA leave.
Substitution of Paid Leave: The terms of an employer’s paid leave policy must be followed by an employee in order to substitute any form of accrued paid leave (including PTO, sick, vacation and personal) for unpaid FMLA leave. For example, if a vacation policy prohibits the use of vacation in less than full day increments, employees do not have a right to vacation pay for FMLA leave of less than one day. Similarly, if a personal leave policy requires two days advance notice, an employee must provide the required notice in order to substitute the paid leave for unpaid FMLA leave.
Notice regarding an employee’s eligibility for FMLA leave (see “Employer Notice Obligations,” below) must include any requirements that apply to the use of paid leave and inform the employee that he remains eligible for unpaid FMLA leave even if he chooses not to meet the terms of the employer’s paid leave policies.
Compensatory time accrued by public agency employees under the FLSA can run concurrent with unpaid FMLA leave.
Health Insurance: The proposed regulations clarify that if an employer allows an employee’s health coverage to lapse due to the employee’s failure to pay premiums during FMLA leave, the employee’s coverage must be reinstated when the employee returns to work.
Perfect Attendance Bonuses: Employers may disqualify employees who take FMLA leave from receiving a perfect attendance bonus if it treats employees who take other forms of non-FMLA leave in the same manner.
Light Duty: Employees are not required to accept light duty in lieu of taking FMLA leave and time spent working light duty jobs does not count as FMLA leave.
Waivers: The prohibition on waiving FMLA rights only applies to waiving prospective rights. Employees and employers may voluntarily agree to settle past claims without first obtaining the permission of the DOL or a court.
Employer Notice Obligations: An employer’s notice obligations are divided into three primary sections: (1) “general notice;” (2) “eligibility notice;” and (3) “designation notice.”
General Notice: Employers must post the FMLA poster and provide the same notice in a handbook or distribute a copy annually. Electronic publication of the latter is permissible if certain requirements are met. The DOL has issued a proposed revised notice to provide employees with “more useful information.” [Appendix C] If the employer employs a “significant portion” of employees who are not literate in English, the poster and notice must be in the language in which they are literate.
Eligibility Notice: This notice must be given to employees within five days (previously two days) of when the employee requests leave or the employer acquires knowledge that an absence may qualify for FMLA leave. [Appendix D] The notice must tell the employee whether leave is still available or state the specific reason why the employee is either not eligible or has no FMLA leave available. Any requirements for substituting paid leave for unpaid leave must be included. The notice must also list the employee’s essential job functions if the employer will require that those functions be addressed in a fitness-for-duty certification.
Designation Notice: The employer has five days (formerly two) from when an employee requests leave or the employer acquires knowledge that an absence may qualify for FMLA leave to designate an absence as FMLA leave. [Appendix E] If possible, the notice must inform the employee of the number of hours, days or weeks that will be counted as FMLA leave. If the amount of leave needed is unknown, the employer must inform the employee every 30 day as to the amount of leave that has been designated as FMLA leave during those 30 days.Employers that fail to give timely notices can be held liable if the employee is able to demonstrate that he or she was harmed as a result. For example, an employee may be able to show that he would have rescheduled leave for surgery, and thereby avoided disciplinary action for his absence, if he had received timely notice that he was not yet eligible for FMLA leave.
Employee Notice Obligations: Employees who fail to give 30 days advance notice can be required to explain why giving 30 days notice was not practicable. Absent an emergency, an employee who is unable to give 30 days advance notice is expected to give notice of the need for leave either the same day the employee learns of the need for leave (if during working hours) or the next business day.
When requesting leave, an employee must give sufficient information to indicate: (1) he is unable to perform the functions of his job (or that a covered family member is unable to participate in daily activities); (2) the anticipated duration of the absence; and (3) whether the employee (or family member) intends to visit a health care provider or is receiving continuing treatment.
Absent unusual circumstances, employees can be required to follow established call-in procedures (except ones that have more stringent timing requirements than the regulations). This includes, for example, the requirement that the employee call a particular number or supervisor to report an absence. However, if an employee is hospitalized and a spouse calls the wrong person or number, for example, to report the absence, the employee may not be penalized.
The DOL acknowledges that the need for prompt notice of the need for leave is heightened when the need for leave is not foreseeable and expects that in “all but the most extraordinary circumstances, employees will be able to provide notice to their employers of the need for leave at least prior to the start of their shift.”
Calling in “sick” is not sufficient. If an employee’s condition deteriorates over a period of time, the employee must provide the employer with additional information needed to determine if the serious health condition standard is met.
Medical Certification: Employers have five days to request certification after learning of the need for leave. [Appendix B]
A certification is inadequate if the information provided is “vague, ambiguous or non-responsive.” Employees must be given the opportunity to correct such deficiencies. This does not apply where the employee fails to timely submit any certification.
Health care providers must indentify any pertinent specialization and their fax number on certifications. The certification form can request a diagnosis but if a diagnosis is not given and the form still provides sufficient information to qualify the absence as FMLA leave, then the employer cannot insist on a diagnosis.
Employers are not required to obtain the employee’s permission prior to contacting a health care provider to authenticate that a certificate was authorized by a health care provider and has not been altered. (The DOL quoted comments submitted by Taft’s Labor and Employment Department with respect to this change and the following section regarding HIPAA).
The proposed regulations also recognize that HIPAA adequately protects the privacy of employee medical information and therefore, an employer may directly contact an employee’s health care provider to clarify information in a medical certification. The employer must first give the employee an opportunity to correct any deficiencies in the certification. If HIPAA requires the employee’s consent for the release of information sought by the employer, the employee’s failure to give consent “may jeopardize his or her FMLA rights if information provided is incomplete or insufficient.” However, the DOL opines that employees may not be required to sign an authorization for the release of medical information as a blanket precondition of taking FMLA leave.
Recertification: Employers may request recertification every 6 months if a certification indicates the condition will last an extended time (e.g., one year) or states the duration is unknown, indefinite or for a “lifetime.”
The same rules that apply to employers contacting an employee’s health care provider regarding an initial medical certification (discussed above) apply to inquiries regarding recertification.
Amendment Relating to Military Service: With respect to the recent amendments relating to military service, the DOL requests comments on numerous issues but has yet to issue proposed regulations on these amendments. As reported previously, the amendment that provides 26 weeks of leave to care for a wounded or ill servicemember is currently in effect. In the absence of regulations, employers must make good-faith efforts to comply with this new leave requirement
The amendment that provides for 12 weeks of leave for a “qualifying exigency” arising out of a family member being called to active duty does not take effect until regulations are issued. However, comments by the DOL indicate that a “qualifying exigency” may include the need for leave to arrange for childcare, attend pre-deployment briefings and family support sessions, see a child or spouse off to service or welcome them back from service, or to make legal and financial arrangements.
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