This morning, the United States Department of Labor (“DOL”) issued final revisions to the regulations under the Family and Medical Leave Act. These are based on the proposed regulations issued in February, 2008 and are the first major revisions to the FMLA regulations since the law was enacted.  The new regulations and accompanying commentary are extensive, covering over 700 pages in their currently available format. 

The regulations are currently slated to take effect on January 16, 2009.  The following is a summary of the proposed regulations, which both modify the current regulations and provide new regulations for military service related leave.

Changes to the Existing FMLA Regulations

• Employers must notify the employee in writing of any alleged deficiencies in a medical certification and give the employee seven days to cure the problem.
• Employers may now contact an employee’s health care provider directly to clarify and authenticate a medical certification after the employee has been given an opportunity to cure any deficiencies.  This contact must be made by a human resources professional, a leave administrator, manager (excluding the employee’s direct supervisor), or a health care provider.
• An employee must comply with the terms of paid leave policies, such as PTO, sick and vacation, when substituting paid leave for unpaid FMLA leave.
• If giving 30 days advance notice is not possible, an employee must give notice of the need for leave as “soon as practicable,” which should usually be either the same day the employee learns of the need for leave or the next business day.
• Absent unusual circumstances, employees must follow the employer’s usual and customary notice and procedural requirements for requesting leave. For example, an employee may be required to call a designated number or a specific individual to request leave, and should generally be able to do so within the time prescribed by “the employer’s usual and customary notice requirements.”
• An employer’s notice obligations are now divided into four primary types of notice: (1) general notice; (2) eligibility notice; (3) rights and responsibilities notice; and (4) designation notice.  General notice includes posting the FMLA poster and publication of a general notice in a handbook or distribution to all new hires.  Eligibility notice must be issued within five business days of a request for leave and must inform the employee of his/her eligibility or state at least one reason why the employee is not eligible.  The rights and responsibilities notice is similar to the current notice required when an employee first begins leave. Notice that an absence is being designated as FMLA leave must also be issued within five days of obtaining sufficient information to make the determination and must, if known, include the amount of time that will be counted as FMLA leave. 
• If an employee would normally be required to work overtime hours but for FMLA leave, the missed overtime hours can be counted as FMLA leave.
• Holidays falling during a full week of FMLA leave count against the employee’s FMLA entitlement.  If the employee is using leave in increments of less than a week, a holiday falling during the leave will not count as FMLA leave.
• FMLA claims may be settled without approval from a court or the DOL.
• An employee who takes FMLA leave may be disqualified from receiving a perfect attendance bonus.

Regulations Relating to Family Members Serving in the Military

The 2008 National Defense Authorization Act added two types of FMLA leave relating to military service:  Servicemember Family Leave (or “Military Caregiver Leave”) and Qualifying Exigency Leave.

    Servicemember Family Leave

• Provides 26 workweeks of leave during a “single 12 month period” to care for family members who are “covered service members.”  The 12 month period begins when the employee first uses this type of leave, regardless of how the employer otherwise measures the employee’s entitlement to FMLA for other qualifying reasons.
• Covered servicemembers can include a spouse, child, parent, or next of kin.  Next of kin means the nearest blood relative other than the servicemember’s spouse, parent or child, in the following order: blood relatives who have been granted legal custody of the servicemember,  siblings,  grandparents, aunts and uncles, and first cousins.
• A covered servicemember is a member of the Armed Forces who is “on the temporary disability retired list, who has a serious health injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy, or otherwise in outpatient status; or otherwise on the temporary disability retired list.” Covered servicemembers do not include former members of the Armed Forces.

     Qualifying Exigency Leave

• Eligible employees may take up to 12 weeks of unpaid FMLA leave while the employee’s spouse, child or parent is on active duty or called to active duty status for one or more “qualifying exigency.”
• A “qualifying exigency” includes a “short-notice deployment,” meaning orders are issued seven or less calendar days before the deployment.  Leave is limited to seven days, beginning on the date the service member is notified of the deployment.
• “Qualifying exigency” also includes a broad category labeled “military events and related activities.”  This includes attending official ceremonies related to active duty, attending family support programs, arranging for changes in childcare and school activities, making financial and legal arrangements to address the service member’s absence, attending counseling sessions, spending time with service members who are on leave (limited to 5 days of leave) and “additional activities.”

The above is but a brief summary of some of the many changes contained in the regulations.  A more thorough summary of the changes will be posted on our web page by Monday afternoon and will also be a topic covered at our annual Labor and Employment Law seminar in Cincinnati on December 4, 2008 (read more) and in Columbus on December 2, 2008.  To register for the Columbus seminar contact Linda Austen-Krichbaum at 614.221.2838 EXT. 227.  Questions regarding the new regulations may also be directed to the labor and employment law attorneys at Taft.