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DOL Issues New FMLA Regulations


On November 17, 2008, the U.S. Department of Labor (DOL) published new Family and Medical Leave Act (FMLA) regulations. The regulations are the first significant FMLA changes since the Act became law in 1993. The DOL states that the new rules should help improve communication between employees, employers, and health care providers and make the law operate more smoothly. The new rules also come as a result of the passage of the military family leave provisions in the National Defense Authorization Act (NDAA) and the U.S. Supreme Court and lower court cases invalidating portions of the previous regulations. The changes will take effect January 16, 2009.

Highlights of new regs

Eligible employees. To be eligible for FMLA protection, an employee must have worked with an employer for at least 12 months and for at least 1,250 hours in the last 12 months. According to the new regulations, when measuring the 12-month requirement, you are no longer required, in most cases, to count work performed before a break in service lasting seven years or more. Military service also shouldn’t be included in any gap determination. Similarly, the hour requirement has been rewritten so that an employee who would have met the 1,250-hour requirement if not for intervening military service remains eligible for FMLA leave.

Joint employment. 
The new regulations clarify that a joint employer relationship generally doesn’t arise from professional employer organizations (PEOs) if the PEO performs only administrative functions. However, if the PEO or vendor actually has the right to hire, fire, and assign work, a joint employer relationship is still likely to exist.

Serious health condition clarifications. 
The new regulations retain the six familiar definitions for serious health condition contained in the original regulations, but they add a couple of clarifications. One form of serious health condition involves an incapacity of more than three days and either (1) two visits with a health care provider (e.g., a doctor) or (2) one visit with a regimen of continuing treatment. The new regulations provide that the first option only protects absences involving two or more doctor visits within a 30-day period and that both options require a doctor visit within seven days of the onset of leave. For the first time, employees will have to certify that they visited a doctor for the condition at least twice a year.

Under the chronic condition form of serious health condition, the new regulations require that employees continue to visit a health care provider at least twice per year to qualify. Chronic conditions such as asthma and diabetes and conditions requiring multiple treatments such as chemotherapy or kidney dialysis are included.

Leave for pregnancy or birth. 
The new regulations consolidate references to employees’ leave rights for pregnancy and birth into one regulation. The regulations now provide that both spouses can take their full 12-week allotment of leave for the birth of a child with a serious health condition regardless of whether they work for the same employer. FMLA leave is also available for the placement of adopted children. In addition, FMLA leave now includes time to travel to another country to complete an adoption.

Expansion of health care providers. 
The new regulations expand the long list of health care providers already eligible to prepare FMLA certifications and treat employees to include physicians’ assistants.

Under the new regulations, when an employee takes a full week of FMLA leave and a holiday occurs within the week, it doesn’t affect how much of the employee’s 12-week FMLA allowance has been used — the week is still counted as a full week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the intervening holiday won’t count against his 12-week entitlement unless he was otherwise scheduled and expected to work during the holiday.

Light duty. 
The new regulations permit an employer and employee to agree to a light-duty schedule that allows the employee to continue working rather than take leave. Under the previous light-duty provisions, the time could be counted against the employee’s 12-week FMLA allowance, even though it technically was working time. That provision has been entirely deleted from the new regulations. Now employees who accept light-duty work need not exhaust any FMLA leave. You can’t require employees to work light-duty jobs in lieu of taking leave, but those who do so voluntarily aren’t on FMLA leave.

Substitution of paid leave. 
FMLA leave remains unpaid, although you can require that employees use any and all paid time off (e.g., sick days, vacation, or personal days) concurrently with FMLA leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FMLA leave must follow the same rules that apply to other employees who use such leave.

Perfect attendance awards. 
The previous regulations specifically stated that employee bonuses based solely on attendance couldn’t be denied because of an employee’s FMLA leave. The new regulations provide that bonus awards can now be based on an employee’s hours worked or perfect attendance. Thus, you’re now allowed to deny perfect attendance awards to employees who don’t have perfect attendance because of taking FMLA leave. However, FMLA leave and similar non-FMLA leave must be treated the same for purposes of these bonuses.

The previous regulations prohibited employees from waiving their rights under the FMLA. Some courts have construed that language as prohibiting settlement agreements and other retroactive waivers without DOL or court approval. The new regulations expressly permit the settlement and release of FMLA claims by employees based on past employer conduct without the approval of the DOL or a court.

Notice obligations. 
The new regulations consolidate all employer notice requirements into one section to clarify some of the conflicting provisions and time periods. They also extend the amount of time for employers to send out eligibility and designation notices from two business days to five business days, absent extenuating circumstances. Also, an employer that deems a medical certification incomplete or insufficient must return it to the employee, specify in writing what information is lacking, and then give the employee seven calendar days to cure the deficiency.

In relation to employee notice obligations, the new regulations provide that when a need for leave isn’t foreseeable and absent unusual circumstances, an employee must comply with your usual notice and procedural requirements (“call-in” procedures). For example, you may require employees to call a designated number or a specific individual to request leave. If an employee doesn’t comply with your required procedures, you may deny or delay FMLA leave if no unusual circumstances justify the failure to comply.

Medical certifications. 
The new regulations include approved medical certification forms, including separate forms for the serious health conditions of employees and those of family members. To streamline the processing of certifications, the new regulations allow health care providers to include medical facts about diagnoses, symptoms, hospitalization, doctors’ visits, prescription medication, referrals for evaluation or treatment, or any other regimen of continuing treatment.

Employer’s contact with health care providers. 
The previous regulations prohibited you from directly contacting health care providers in most instances. The new regulations provide an exception to that rule. You can contact health care providers if an employee’s serious health condition may also be considered a disability under the Americans with Disabilities Act (ADA) as long as you follow the ADA restrictions. The new rules also allow you to contact an employee’s physician for clarification and authentication of medical certifications; however, you can only initiate the contact through a health care provider, HR professional, leave administrator, or management official. Under no circumstances can an employee’s direct supervisor contact the health care provider.

Fitness for duty. 
The new regulations permit you to require an employee to obtain from his health care provider a certification that he is fit to resume work following FMLA leave. When completing a fitness-for-duty certification, the health care provider must assess the employee’s ability to return to work against the identified essential functions provided by you.

Military leave. 
The new regulations also respond to the military leave provisions provided in the NDAA. The NDAA requires you to provide employees up to 12 weeks of leave in a 12-month period to tend to any “exigency” resulting from a service member’s call to duty. The new regulations clarify that exigency leave may be taken by eligible employees (consisting of not only a spouse, son, daughter, or parent but also “next of kin” — the next nearest blood relative) while their spouse, son, daughter, or parent is on active duty or has been called to active duty status in the National Guard or reserves or if the family member is a retired member of the regular armed forces or reserves. Qualifying exigencies include short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, postdeployment activities, and additional activities.

The meaning of military caregiver leave is also clarified in the new regulations. An eligible employee is entitled to 26 workweeks of leave in a 12-month period to care for a covered service member in the armed forces (including the National Guard and reserves) who becomes ill or injured as a result of her military service. The 12-month period begins when the employee starts using her leave. This leave may only be taken once per injury, but it may be taken again if there are additional injuries. More than one family member may qualify for the leave.

Bottom line

Thus far, commentators have opined that the new regulations are more favorable to employers. However, only time will tell the impact the new rules will have. These regulations go into effect January 16, 2009. Therefore, you should prepare now for the changes ahead. You should revisit your FMLA policies and procedures to ensure you’re in compliance with the new regulations.

The DOL has also updated the optional form to assist you in administering the FMLA, and it has added forms to help implement the new military leave provisions. The forms are available at If you have any questions about the new FMLA regulations or need help updating your policies, please contact any member of the Bingham Greenebaum Doll LLP Labor and Employment Department. 

Copyright 2008 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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