Scott H. Dunham,
Guy Brenner,
Kymberleigh Damron-Hsiao
On November 17, 2008, the U.S. Department of Labor (the “DOL”) published its final rule implementing revisions and amendments to the Family and Medical Leave Act (“FMLA”). These regulations, which become effective January 16, 2009, revise or clarify existing FMLA regulations and amend the FMLA regulations to provide two new military family leave entitlements. Employers should take note of these changes, especially the following significant amendments.
Significant Changes to FMLA Regulations New Military Family Leave Entitlements The new regulations amend the FMLA to provide two new types of military family leaves that were part of the National Defense Authorization Act, signed by President Bush on January 28, 2008.
1.
Military Caregiver Leave (also known as Covered Servicemember Leave) Under this new form of military leave, during a single 12-month period, eligible employees who are family members of "covered servicemembers" are entitled to take up to 26 workweeks of leave (in contrast to the 12-workweeks of leave authorized for other FMLA leave) to care for a covered servicemember with a serious illness or injury incurred in the line of duty while on active duty. Significantly, this leave extends FMLA protection beyond a spouse, son, daughter, or parent, to include next of kin who are ineligible to take FMLA leave for other qualifying reasons. To be eligible to take military caregiver leave, the covered servicemember needing care must be either: (1) undergoing medical treatment, recuperation, or therapy; (2) in outpatient status; or (3) on the temporary disability retired list. “Covered servicemembers” are defined as current members of the Regular Armed Forces or the National Guard or Reserves, and members of the Regular Armed Forces, the National Guard and the Reserves who are on the temporary disability retired list. Former members of the Regular Armed Forces and National Guard and Reserves and members of the permanent disability retired list, however, are excluded from the definition of covered servicemembers.
The new regulations provide that the 26 workweeks of leave must be applied per-servicemember, per-injury entitlement (i.e., an eligible employee for military caregiver leave may take 26 workweeks of leave to care for one covered servicemember during a single 12-month period and take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or the same covered servicemember with a subsequent serious injury or illness).
A request for military caregiver leave may be supported by a certification completed by (1) a DOD health care provider; (2) a VA health care provider; (3) a DOD TRICARE network authorized private health care provider; or (4) a DOD non-network TRICARE authorized private health care provider.
2.
Qualifying Exigency Leave (also known as Active Duty Leave) This new military family leave entitles eligible employees with a “covered military member” serving in the National Guard or Reserves to 12 workweeks of FMLA job-protected leave for “any qualifying exigency” arising from a covered military member’s active duty or call to active duty status in support of a contingency operation. The DOL’s final rule defines “qualifying exigency” by providing seven specific categories in which an eligible employee may take leave because of a qualifying exigency: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; and (7) post-deployment activities. The leave may also be extended to additional activities agreed to by the employer and employee that are not encompassed within the other categories. A “covered military member” is defined as an employee’s spouse, son, daughter, or parent on active duty or called to active duty status. The new regulations further define a “son or daughter on active duty or called to active duty status” as an employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty, and who is of any age.
Clarification of Existing Regulations and Other Changes Significant clarifications and amendments in the final rule include:
- Definition of a Serious Health Condition
The regulations’ six separate definitions of “serious health condition” are retained, however the new rule clarifies timing requirements regarding incapacity treatment, when continuing treatment must occur and the frequency of periodic treatment for chronic conditions.
The final rule also provides clarification to an existing definition of serious health condition by providing that an employee or family member must visit a health care provider two times within 30 days after the first day of incapacity.
Two definitions of serious health condition now require an employee or family member to visit a health care provider within seven days after the first day of incapacity.
Chronic serious health conditions are defined as those requiring visits to a health care provider at least twice a year.
- Substitution of Paid Leave
Eligible employees who use any type of paid leave, including “paid time off,” simultaneously with FMLA leave must follow employer rules/policies that apply to other employees for use of such paid leave.
- Light Duty
“Light duty” does not count against an employee’s FMLA leave entitlement and the employee retains the right to job restoration to the same or equivalent position during the period of time the employee performs light duty or until the end of the applicable 12-month FMLA year.
- Employer Notice Obligations
Employers must provide employees with: (1) a general notice about the FMLA through a poster and either (a) in employee handbooks or other written materials concerning benefits or leave, or (b) upon hire; (2) an eligibility notice within five days of acquiring knowledge that an employee’s leave may be for FMLA-qualifying reasons absent extenuating circumstances; (3) a rights and responsibilities notice each time an eligibility notice is provided; and (4) a designation notice within five days of obtaining enough information to determine whether the leave is being taken for a FMLA-qualifying reason.
- Employee Notice
Absent extenuating circumstances, employees who need FMLA leave must follow the employer’s usual and customary call-in rules for reporting absences.
- Perfect Attendance Awards
Employers are permitted to deny perfect attendance awards to employees who are absent from work due to FMLA leave as long as the employer also denies such awards to other employees on non-FMLA leave.
- Medical Certification
Only a leave administrator or management official may contact an employee’s health care provider.
Employers cannot ask an employee’s health care provider for information beyond the information required by the certification form.
If an employer deems medical certification incomplete or insufficient, it must specify in writing what information is lacking and provide the employee seven calendar days to cure any such deficiency.
Employers can request a new medical certification from employees each leave year for medical conditions lasting longer than one year as well as recertification of an ongoing condition every six months in conjunction with an FMLA absence.
- Fitness-For-Duty Certifications
An employer may require that the fitness-for-duty certification specifically address the employee’s ability to perform essential functions of the employee’s job and that such certification be submitted before an employee returns to work when the employee takes intermittent leave and when reasonable job safety concerns to the employee or others exist.