New FMLA Regulations Are Issued
November 17, 2008
On November 14, 2008, the United States Department of Labor (“DOL”) issued final revisions to the Family and Medical Leave Act regulations. These revisions are based on the regulations proposed 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.
The regulations are currently set to take effect on January 16, 2009. The following is a summary of changes and clarifications in the new regulations. The regulations both modify the current regulations and provide new regulations for military service related leave. For convenience, the regulations relating to military service are discussed separately at the end of this article.
The new regulations necessitate a careful review of employers’ existing FMLA policies, practices, notices and forms to ensure compliance. Among other things, employers will need to decide whether they will use the optional forms issued by the Department of Labor or adopt forms more tailored to their specific operations. Taft’s labor and employment law attorneys are available to assist with compliance reviews and to answer your questions.
Summary of the New FMLA Regulations
Joint Employment. Professional Employer Organizations (PEOs) that contract with client employers merely to perform administrative functions (e.g., payroll, benefits and regulatory paperwork) are not joint employers with their clients. §825.106(b)(2) (All citations are to Title 29 of the Code of Federal Regulations)
The primary responsibility for reinstatement following leave rests with the primary employer (usually the staffing firm). The secondary employer (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 and the staffing agency chooses to again place the employee with the secondary employer. §825.106(e)
Employee Eligibility Requirements. Employment prior to a continuous break in service of seven years or more is not counted when determining whether an employee meets the 12 months of service requirement. Time away from work due to service in the National Guard or Reserve, or due to leave pursuant to a written agreement that references the employer’s intent to rehire the employee, do not qualify as a break in service. §825.110(b)
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. §825.110(c)(2)
Whether an employee meets the 12 months of service and 1250 hours of work requirements is determined as of the date leave is to begin. Whether 50 employees are employed within 75 miles of the employee’s worksite is determined as of the date the employee gives notice of the need for leave. The employee’s eligibility is not affected by any later change in the number of employees within 75 miles of the employee’s worksite for that specific notice of the need for leave. §825.110(d)
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 agency’s office from which the employee is assigned, unless the employee has physically worked for at least a year at a facility of a secondary employer, in which case the employee’s “worksite” is that location. The worksite of employees who work at, or out of, their home is the office to which they report and from which assignments are made, not their residence. §825.111(a)
Serious Health Condition. The DOL clarifies that an individual must be incapacitated for over three full days in order to claim this type of 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. The health care provider must determine that the second visit is necessary, and the first visit must be within seven days of the first day of incapacity. This seven-day requirement also applies where the “one visit to a health care provider followed by a regimen of treatment” standard is being applied. Whether additional treatment visits are necessary within the 30-day period is to be determined by the health care provider. §825.115(a)
To qualify as a chronic serious health condition, the condition must require two or more visits to a health care provider each year. §825.115(c)
Leave for Treatment of Substance Abuse. Employees may continue to invoke the FMLA for treatment for substance abuse but not for absences due to use of a substance. However, the regulations now state that “if an employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.” §825.119
Spouses Working for the Same Employer. The regulations reemphasize that spouses are limited to a combined 12 weeks of leave only when the leave is to care for a parent or to be with a healthy newborn or placement for adoption or foster care. Leave is not aggregated for other purposes, such as to care for a newborn child or foster child who has a serious condition. §825.122
Definition of “Son or Daughter.” The new regulations clarify that an employee may take FMLA leave to care for a son or daughter who is 18 or over only if he or she is “incapable of self care because of a mental or physical disability” at the time leave is to begin. §825.122(c)
“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. §825.124
“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.” §825.125
Evidence of Family Relationships. An employer may require documentation of a family relationship, including “next of kin” status for leave relating to the care of a service member. Examples include a birth certificate or court document. §825.122(j)
Holidays. 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 does not count as FMLA leave unless the employee was otherwise scheduled to work the holiday. Times when an employer’s operations temporarily cease for a week or more, such as a plant shutdown for retooling, do not count as FMLA time for employees already on leave. §825.200(h)
Intermittent Leave. Leave may be taken in increments of one hour or smaller increments if employers allow smaller increments for purposes of calculating other 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. §825.203
Overtime. 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.
§825.205(c)
Substitution of Paid Leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. 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. The employer must notify the employee of any additional requirements for use of paid leave in the rights and responsibilities notice that it provides the employee. Because worker’s compensation leave is not unpaid, the provision for substitution of paid leave does not apply to such leave. However, if state law permits, an employer and employee may agree to have paid leave supplement worker’s compensation benefits. §825.207
Compensatory time accrued by public agency employees under the FLSA can run concurrent with unpaid FMLA leave. §825.207
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. §825.212(c)
Perfect Attendance Bonuses. If a bonus or other payment is based on achieving a specified goal such as hours worked, products sold or perfect attendance, and an employee does not meet the goal due to FMLA leave, the payment may be denied.
§825.215(c)(2)
Waivers. Employees may not waive prospective rights under the FMLA but may settle or release FMLA claims based on past conduct without approval of the DOL or a court. §825.220(d)
Light Duty. Employees are not required to accept light duty in lieu of taking FMLA leave. Employees who voluntarily accept light duty do not waive the right to restoration to their original position, but this right expires after 12 months. §825.220(d)
Employer Notice Obligations. An employer’s notice obligations are now divided into four types of notice: (1) general notice; (2) eligibility notice; (3) rights and responsibilities notice; and (4) designation notice.
General Notice. All FMLA-covered employers must post the FMLA poster. Employers with FMLA eligible employees must also provide the same general notice in its employee handbook or distribute a copy to all new hires. Electronic publication of the latter is permissible. The DOL has issued a revised notice that employers can use for handbooks and distribution to new hires.1 If the employer has a “significant portion” of employees who are not literate in English, the poster and notice must be provided in the language in which they are literate. §825.300(a)
Eligibility Notice. This notice must be given to employees within five days (previously two days) of when an employee requests leave or the employer acquires knowledge that an absence may qualify for FMLA leave. The notice must state whether the employee is eligible or state at least one reason why the employee is not eligible, including whether the employee fails to meet the 12 months service, 1250 hours of work or worksite eligibility standards. This notice may be oral or in writing. §825.300(b)
Rights and Responsibilities Notice. This notice, which must be given each time an eligibility notice is given, must inform the employee of his or her obligations while on leave and the consequences of failing to meet these obligations. The regulations list seven specific items that must be included in the notice and the DOL has issued a prototype notice that employers may use. §825.300(c)
Designation Notice. The employer has five days (formerly two) from when it has enough information to determine whether an absence qualifies for FMLA leave to notify the employee whether the absence is being counted as FMLA leave. This notice must also inform the employee whether paid leave must be substituted for FMLA leave and any requirements for a fitness-for-duty certification. If known at the time notice is given, the employer 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 days as to the amount of leave that has been designated as FMLA leave during those 30 days. The DOL has issued a prototype notice. §825.300(d)
Employee Notice Obligations. Employees must give 30 days advance notice when the need for leave is foreseeable. 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.”
When an employee seeks leave due to a qualifying reason for which the employer has previously provided FMLA leave, the employee must specifically reference the qualifying reason or the need for FMLA leave. Calling in “sick” is not sufficient. §825.302 and 303
Medical Certification. Employers have five days to request certification after learning of the need for leave. 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. If an employee’s need for leave due to the serious health condition of the employee or a family member lasts beyond a year, a new medical certification can be required each year. §825.305
As part of the certification process, an employer may provide a statement of essential functions of an employee’s position and require a certifying health care provider to certify what functions the employee is unable to perform. §825.123(b)
The DOL has developed two optional medical certification forms, one for use when the employee has a serious health condition and the other for use when a family member has a serious health condition. An employee may choose to comply with the certification requirement by providing the employer with an authorization allowing the employer to contact the employee’s health care provider. §825.306
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. “Authentication” means verifying that the health care provider completed and/or authorized the information on the certification form. “Clarification” means inquiring to understand the handwriting on the form or to understand the meaning of a response. Employers may not ask for additional information beyond that required by the form. §825.307
The regulations recognize that health care providers must comply with HIPAA when releasing individually identifiable health information and state that if an employee refuses to provide an employer with authorization allowing the employer to clarify information in a certification, and does not otherwise clarify the certification, the employer may deny FMLA leave. §825.307
Recertification. Employers may request recertification every 6 months regardless of whether the certification states a longer period of time, but recertification can only be requested in connection with an absence. §825.308
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. The following is a summary of the new regulations pertaining to these two types of FMLA 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 leave for other qualifying reasons. §825.127
An eligible employee is entitled to a combined total of 26 weeks to care for a servicemember and other forms of FMLA leave. For example, an employee may take 16 weeks of leave to care for a servicemember and 10 weeks to care for a newborn child. Leave that qualifies as care for a servicemember and as leave to care for a family member with a serious health condition must be designated as leave to care for a servicemember in the first instance. §825.127
Covered servicemembers include a spouse, son/daughter, 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. However, a servicemember may designate in writing another blood relative as his or her “next of kin” in which case he or she will be the person entitled to take leave under this provision. §825.122(d)
A “covered servicemember” is a member of the Armed Forces who is “on the temporary disability retired list, who has a serious 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.” “Outpatient status” means the servicemember is assigned to a military medical treatment facility as an outpatient or a unit established for members receiving medical care as outpatients. Covered servicemembers do not include former members of the Armed Forces. §825.127
Employers may request medical certification, as well as certification of other appropriate facts, to support this type of leave. An optional DOL form is available for this purpose. The regulations list the types of information that can be requested, and also list specific health care providers relating to the Armed Forces who can provide the medical certification. §825.310
Qualifying Exigency Leave
Eligible employees may take up to 12 weeks of unpaid FMLA leave because of any “qualifying exigency” arising out of the employee’s spouse, child or parent being on active duty or called to active duty status in support of a “contingency operation.” §825.111 and §825.200 The employee may be required to submit a copy of the covered military member’s active duty orders or other documentation to support the need for leave. The employee may also be required to provide a certification, signed by the employee, that describes appropriate facts regarding the qualifying exigency and the requested leave. §825.309 Once again, the DOL has issued an optional form that can be used for this purpose.
A “qualifying exigency” includes a “short-notice deployment,” meaning orders are issued seven or less calendar days before the deployment. Leave for this exigency 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 short-term rest and recuperation leave (employee’s leave is limited to 5 days for each instance), participating in arrival ceremonies and reintegration events within 90 days following the termination of active duty status, attending to issues arising from the death of a servicemember, and “additional activities.” §825.126
A “contingency operation” includes a host of statutorily defined events that generally involve calling the National Guard into federal service or ordering to active duty members of various federal reserve forces. Importantly, an employee whose family member is on active duty as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency. State calls to active duty are also not covered unless under order of the President of the United States. §825.126
Leave due to a qualifying exigency may be taken intermittently or on a reduced schedule basis. §825.202(d) If the leave involves meeting with a third party, the employer may, without the employee’s permission, contact that party to verify the schedule and nature of the meeting. §825.309
1. The attached Department of Labor optional-use FMLA forms are the best copies available at this time, but some contain format problems. These links will be updated as better copies become available.
The regulations are currently set to take effect on January 16, 2009. The following is a summary of changes and clarifications in the new regulations. The regulations both modify the current regulations and provide new regulations for military service related leave. For convenience, the regulations relating to military service are discussed separately at the end of this article.
The new regulations necessitate a careful review of employers’ existing FMLA policies, practices, notices and forms to ensure compliance. Among other things, employers will need to decide whether they will use the optional forms issued by the Department of Labor or adopt forms more tailored to their specific operations. Taft’s labor and employment law attorneys are available to assist with compliance reviews and to answer your questions.
Summary of the New FMLA Regulations
Joint Employment. Professional Employer Organizations (PEOs) that contract with client employers merely to perform administrative functions (e.g., payroll, benefits and regulatory paperwork) are not joint employers with their clients. §825.106(b)(2) (All citations are to Title 29 of the Code of Federal Regulations)
The primary responsibility for reinstatement following leave rests with the primary employer (usually the staffing firm). The secondary employer (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 and the staffing agency chooses to again place the employee with the secondary employer. §825.106(e)
Employee Eligibility Requirements. Employment prior to a continuous break in service of seven years or more is not counted when determining whether an employee meets the 12 months of service requirement. Time away from work due to service in the National Guard or Reserve, or due to leave pursuant to a written agreement that references the employer’s intent to rehire the employee, do not qualify as a break in service. §825.110(b)
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. §825.110(c)(2)
Whether an employee meets the 12 months of service and 1250 hours of work requirements is determined as of the date leave is to begin. Whether 50 employees are employed within 75 miles of the employee’s worksite is determined as of the date the employee gives notice of the need for leave. The employee’s eligibility is not affected by any later change in the number of employees within 75 miles of the employee’s worksite for that specific notice of the need for leave. §825.110(d)
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 agency’s office from which the employee is assigned, unless the employee has physically worked for at least a year at a facility of a secondary employer, in which case the employee’s “worksite” is that location. The worksite of employees who work at, or out of, their home is the office to which they report and from which assignments are made, not their residence. §825.111(a)
Serious Health Condition. The DOL clarifies that an individual must be incapacitated for over three full days in order to claim this type of 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. The health care provider must determine that the second visit is necessary, and the first visit must be within seven days of the first day of incapacity. This seven-day requirement also applies where the “one visit to a health care provider followed by a regimen of treatment” standard is being applied. Whether additional treatment visits are necessary within the 30-day period is to be determined by the health care provider. §825.115(a)
To qualify as a chronic serious health condition, the condition must require two or more visits to a health care provider each year. §825.115(c)
Leave for Treatment of Substance Abuse. Employees may continue to invoke the FMLA for treatment for substance abuse but not for absences due to use of a substance. However, the regulations now state that “if an employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.” §825.119
Spouses Working for the Same Employer. The regulations reemphasize that spouses are limited to a combined 12 weeks of leave only when the leave is to care for a parent or to be with a healthy newborn or placement for adoption or foster care. Leave is not aggregated for other purposes, such as to care for a newborn child or foster child who has a serious condition. §825.122
Definition of “Son or Daughter.” The new regulations clarify that an employee may take FMLA leave to care for a son or daughter who is 18 or over only if he or she is “incapable of self care because of a mental or physical disability” at the time leave is to begin. §825.122(c)
“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. §825.124
“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.” §825.125
Evidence of Family Relationships. An employer may require documentation of a family relationship, including “next of kin” status for leave relating to the care of a service member. Examples include a birth certificate or court document. §825.122(j)
Holidays. 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 does not count as FMLA leave unless the employee was otherwise scheduled to work the holiday. Times when an employer’s operations temporarily cease for a week or more, such as a plant shutdown for retooling, do not count as FMLA time for employees already on leave. §825.200(h)
Intermittent Leave. Leave may be taken in increments of one hour or smaller increments if employers allow smaller increments for purposes of calculating other 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. §825.203
Overtime. 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.
§825.205(c)
Substitution of Paid Leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. 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. The employer must notify the employee of any additional requirements for use of paid leave in the rights and responsibilities notice that it provides the employee. Because worker’s compensation leave is not unpaid, the provision for substitution of paid leave does not apply to such leave. However, if state law permits, an employer and employee may agree to have paid leave supplement worker’s compensation benefits. §825.207
Compensatory time accrued by public agency employees under the FLSA can run concurrent with unpaid FMLA leave. §825.207
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. §825.212(c)
Perfect Attendance Bonuses. If a bonus or other payment is based on achieving a specified goal such as hours worked, products sold or perfect attendance, and an employee does not meet the goal due to FMLA leave, the payment may be denied.
§825.215(c)(2)
Waivers. Employees may not waive prospective rights under the FMLA but may settle or release FMLA claims based on past conduct without approval of the DOL or a court. §825.220(d)
Light Duty. Employees are not required to accept light duty in lieu of taking FMLA leave. Employees who voluntarily accept light duty do not waive the right to restoration to their original position, but this right expires after 12 months. §825.220(d)
Employer Notice Obligations. An employer’s notice obligations are now divided into four types of notice: (1) general notice; (2) eligibility notice; (3) rights and responsibilities notice; and (4) designation notice.
General Notice. All FMLA-covered employers must post the FMLA poster. Employers with FMLA eligible employees must also provide the same general notice in its employee handbook or distribute a copy to all new hires. Electronic publication of the latter is permissible. The DOL has issued a revised notice that employers can use for handbooks and distribution to new hires.1 If the employer has a “significant portion” of employees who are not literate in English, the poster and notice must be provided in the language in which they are literate. §825.300(a)
Eligibility Notice. This notice must be given to employees within five days (previously two days) of when an employee requests leave or the employer acquires knowledge that an absence may qualify for FMLA leave. The notice must state whether the employee is eligible or state at least one reason why the employee is not eligible, including whether the employee fails to meet the 12 months service, 1250 hours of work or worksite eligibility standards. This notice may be oral or in writing. §825.300(b)
Rights and Responsibilities Notice. This notice, which must be given each time an eligibility notice is given, must inform the employee of his or her obligations while on leave and the consequences of failing to meet these obligations. The regulations list seven specific items that must be included in the notice and the DOL has issued a prototype notice that employers may use. §825.300(c)
Designation Notice. The employer has five days (formerly two) from when it has enough information to determine whether an absence qualifies for FMLA leave to notify the employee whether the absence is being counted as FMLA leave. This notice must also inform the employee whether paid leave must be substituted for FMLA leave and any requirements for a fitness-for-duty certification. If known at the time notice is given, the employer 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 days as to the amount of leave that has been designated as FMLA leave during those 30 days. The DOL has issued a prototype notice. §825.300(d)
Employee Notice Obligations. Employees must give 30 days advance notice when the need for leave is foreseeable. 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.”
When an employee seeks leave due to a qualifying reason for which the employer has previously provided FMLA leave, the employee must specifically reference the qualifying reason or the need for FMLA leave. Calling in “sick” is not sufficient. §825.302 and 303
Medical Certification. Employers have five days to request certification after learning of the need for leave. 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. If an employee’s need for leave due to the serious health condition of the employee or a family member lasts beyond a year, a new medical certification can be required each year. §825.305
As part of the certification process, an employer may provide a statement of essential functions of an employee’s position and require a certifying health care provider to certify what functions the employee is unable to perform. §825.123(b)
The DOL has developed two optional medical certification forms, one for use when the employee has a serious health condition and the other for use when a family member has a serious health condition. An employee may choose to comply with the certification requirement by providing the employer with an authorization allowing the employer to contact the employee’s health care provider. §825.306
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. “Authentication” means verifying that the health care provider completed and/or authorized the information on the certification form. “Clarification” means inquiring to understand the handwriting on the form or to understand the meaning of a response. Employers may not ask for additional information beyond that required by the form. §825.307
The regulations recognize that health care providers must comply with HIPAA when releasing individually identifiable health information and state that if an employee refuses to provide an employer with authorization allowing the employer to clarify information in a certification, and does not otherwise clarify the certification, the employer may deny FMLA leave. §825.307
Recertification. Employers may request recertification every 6 months regardless of whether the certification states a longer period of time, but recertification can only be requested in connection with an absence. §825.308
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. The following is a summary of the new regulations pertaining to these two types of FMLA 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 leave for other qualifying reasons. §825.127
An eligible employee is entitled to a combined total of 26 weeks to care for a servicemember and other forms of FMLA leave. For example, an employee may take 16 weeks of leave to care for a servicemember and 10 weeks to care for a newborn child. Leave that qualifies as care for a servicemember and as leave to care for a family member with a serious health condition must be designated as leave to care for a servicemember in the first instance. §825.127
Covered servicemembers include a spouse, son/daughter, 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. However, a servicemember may designate in writing another blood relative as his or her “next of kin” in which case he or she will be the person entitled to take leave under this provision. §825.122(d)
A “covered servicemember” is a member of the Armed Forces who is “on the temporary disability retired list, who has a serious 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.” “Outpatient status” means the servicemember is assigned to a military medical treatment facility as an outpatient or a unit established for members receiving medical care as outpatients. Covered servicemembers do not include former members of the Armed Forces. §825.127
Employers may request medical certification, as well as certification of other appropriate facts, to support this type of leave. An optional DOL form is available for this purpose. The regulations list the types of information that can be requested, and also list specific health care providers relating to the Armed Forces who can provide the medical certification. §825.310
Qualifying Exigency Leave
Eligible employees may take up to 12 weeks of unpaid FMLA leave because of any “qualifying exigency” arising out of the employee’s spouse, child or parent being on active duty or called to active duty status in support of a “contingency operation.” §825.111 and §825.200 The employee may be required to submit a copy of the covered military member’s active duty orders or other documentation to support the need for leave. The employee may also be required to provide a certification, signed by the employee, that describes appropriate facts regarding the qualifying exigency and the requested leave. §825.309 Once again, the DOL has issued an optional form that can be used for this purpose.
A “qualifying exigency” includes a “short-notice deployment,” meaning orders are issued seven or less calendar days before the deployment. Leave for this exigency 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 short-term rest and recuperation leave (employee’s leave is limited to 5 days for each instance), participating in arrival ceremonies and reintegration events within 90 days following the termination of active duty status, attending to issues arising from the death of a servicemember, and “additional activities.” §825.126
A “contingency operation” includes a host of statutorily defined events that generally involve calling the National Guard into federal service or ordering to active duty members of various federal reserve forces. Importantly, an employee whose family member is on active duty as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency. State calls to active duty are also not covered unless under order of the President of the United States. §825.126
Leave due to a qualifying exigency may be taken intermittently or on a reduced schedule basis. §825.202(d) If the leave involves meeting with a third party, the employer may, without the employee’s permission, contact that party to verify the schedule and nature of the meeting. §825.309
1. The attached Department of Labor optional-use FMLA forms are the best copies available at this time, but some contain format problems. These links will be updated as better copies become available.
