Posted: 11.20.2008
On November 17, 2008, the Department of Labor (DOL) published its “Final Rule” to implement the first-ever amendments to the Family and Medical Leave Act (FMLA).
Covered Employers
FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees (within a 75 mile radius for multiple offices) each working day during at least 20 calendar weeks in the current or preceding calendar year. The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test.
Key News
The regulations provide new military family leave entitlements and generally update the regulations under the 15 year-old FMLA. The DOL predicts that the final rule will improve communication between employees, employers, and health care providers to make the law operate more smoothly, and provide needed clarity for both workers and employers about their responsibilities and rights under FMLA leave.
The Final Rule generally focuses on two areas:
1) Military family Leave Entitlement
The final regulations implement two important new military family leave entitlements for eligible specified family members and adds clarity to that previously communicated:
Extigencies (primarily relating to military reservists): Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member's active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and
Covered Service Members: Up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.
2) General FMLA Regulation Updates
Here are summaries of some of the significant revisions included in the Final Rule:
Serious Health Condition: While the rule retains the six individual definitions of "serious health condition," it adds guidance on some regulatory matters. First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a healthcare provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines "periodic visits to a healthcare provider" for chronic serious health conditions as at least two visits to a healthcare provider per year.
Intermittent Leave: The final rule clarifies that employees who take intermittent FMLA leave have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to disrupt unduly the employer's operations.
Employee Notice: The final rule states that when an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
Paid Leave: FMLA leave itself is unpaid leave. The FMLA allows employees to use accrued paid leave as a substitute for unpaid FMLA leave, and it allows employers to require employees to exhaust available paid leave balances (like vacation time, personal time, sick time, etc.) before taking unpaid leave. The old regulations treated the use of vacation or personal leave differently than sick leave, but the new rules treat all forms of paid leave the same. However neither the employer nor the employee may require the concurrent use of paid leave when leave is also taken pursuant to a disability benefit plan or workers’ compensation. The required designation notice must inform the employee if the employer requires paid leave to be substituted for unpaid leave.
Gaps in Service: The final rule adds a new paragraph that addresses the requirement that employees are eligible to take FMLA leave only if they have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave. The final rule states that, although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of seven years or more need not be counted.
Medical Certification: In the final rule, the department adopted a change that allows employers to contact the employee's healthcare provider directly. An employer may contact the employee's healthcare provider for two purposes only: clarification and authentication of the medical certification. The employer may request no additional information beyond that included in the certification form.
In response to privacy concerns expressed by employees, the department added a requirement to the final rule that specifies the employer's representative contacting the employee's healthcare provider must be a human resource professional, a leave administrator, or a management official, but in no case may it be the employee's direct supervisor.
The revision also specifies that the employee is not required to permit his or her healthcare provider to communicate with the employer. However, if the employee denies the employer permission and doesn't otherwise clarify an unclear certification, the employer may deny the designation of FMLA leave. However, prior to making any contact with the healthcare provider, the employer must first provide the employee an opportunity to resolve any deficiencies in the certification.
Fitness for Duty Certification: The final regulation also clarifies that employers may require a fitness-for-duty certification to address an employee's ability to perform essential job functions. However, if the employer does have such a requirement, the employer must provide the employee with a list of those essential job functions no later than the “designation notice” and specify in the designation notice that the fitness-for-duty certification must address the employee's ability to perform those essential functions.
Action Required
Employers will need to update their FMLA policies and forms and further educate their employees on new notice, procedural and other requirements.
Effective Date
The Final Rules are effective on January 16, 2009.
EMPLOYER RESOURCES
Posters
Forms
The Final Rule includes two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of family leave. Links to those forms are below:
Links
Note: Look for ALCOS / Brown & Brown, as part of our compliance seminar series, to host a seminar in the near future on the broadening landscape of FMLA.
