Department of Labor's Final Rule on Family and Medical Leave
On Monday, the U.S. Department of Labor (DOL) published its revised Final Regulations that interpret and assist in clarifying various aspects of the Family and Medical Leave Act (FMLA) including the recently enacted FMLA amendments expanding the Act to cover military families in deployment situations. The Final Regulations, are published in Volume 73 of the Federal Register and are extremely detailed. They contain hundreds of pages of material. If you are responsible for implementing FMLA policies at your workplace, you will want to review them. For information and a link to a complete copy of the regulations go to: http://www.dol.gov/esa/whd/fmla/finalrule.htm
The Final Regulations will take effect on January 16, 2009 (which coincidentally is the last workday that President Bush is in office), and some of the highlights include:
Posting Requirements: The requirements for posting notices regarding FMLA leave have been altered and specified including rules on when electronic posting is permissible.
Military Caregiver Leave: Eligible military family members will be able to take up to 26 workweeks of leave in a single 12-month period to care for a covered service member with a serious illness or injury incurred in the line of duty.
Qualifying Exigency Leave: Under the recent FMLA amendments, Families of National Guard and Reserve personnel on active duty are able to take FMLA leave to manage “qualifying exigencies” which were not defined at the time the amendments were enacted. “Qualifying exigencies” are now defined in the Regulations and include short-notice deployment, military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-deployment activities.
Light Duty: Time spent in “light duty” work will not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration will be held in abeyance during the light duty period.
Designation of Leave: Once leave is designated as FMLA leave, the employer must promptly notify the employee that leave is being designated as FMLA leave, and in all cases such notification must be made within five business days (a change from the current requirement of two business days). Retroactive designation will be allowed but only where it does not cause any harm or prejudice to the employee.
Waiver of Rights: Employees may voluntarily settle their FMLA claims without court or DOL approval and any rights for claims based on prior conduct can be waived by the employee. The federal courts of appeal had previously split on this issue. Prospective waivers of FMLA rights, however, remain prohibited.
Certification Forms: New medical certification forms have been published and different forms are now required for (a) leave requested for the employee’s serious medical condition and (b) leave requested to care for a relative.
Intermittent Leave: The Regulations now provide that the employer must account for the intermittently scheduled leave using increments no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour. Thus, if employers account for all leave in periods of no less than an hour, they can account for intermittent leave using increments of one hour. The final regulations further clarify that employers are not required to account for FMLA leave in increments equal to the smallest increment that the employer’s payroll systems are capable of doing so.
Doctor’s Visits: If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a doctor, the two visits must occur within 30 days of the period of incapacity. Employees with chronic serious health conditions will be required to visit a doctor at least twice a year for that condition to qualify for FMLA leave.
Bonuses & Awards: Employers will be able to consider FMLA absences in determining bonuses and other incentive awards (such as perfect attendance awards) as long as the employer treats employees taking non-FMLA leave in an identical way.
Notice of Leave: The Final Regulations dictate that employees on leave can be compelled to follow the employer’s usual call-in rules for reporting absences, except emergencies.
Paid Leave: Employees who use paid leave at the same time as family leave must follow the employer’s rules on paid time off.
Fitness for Duty: Employers will be allowed to require “fitness for duty” evaluations to make sure that workers who took FMLA leave can perform the essential functions of their specific job without endangering themselves or others.
Medical Certification Process: An employee’s direct supervisor will no longer be allowed to contact a health care provider for medical certification.
Questions remain for California employers as to how these regulations can be meshed with corresponding CFRA rules and requirements and whether the California courts will begin to interpret CFRA in a manner that is consistent with these FMLA regulations. Thus, while these regulations help to clarify a wide variety of FMLA issues, in states like California, that have a corresponding family leave statute, these regulations may create at least as many new questions as they answer.
In addition, many feel that Congress and President Elect Obama will enact legislation next year that expands FMLA rights. Thus, it is possible that some of the provisions of these regulations could be modified and superseded by legislation in 2009 that amends the actual FMLA statute.
In the meantime, those with family leave responsibilities will want to familiarize themselves with these new regulations and make any necessary policy and practice changes on or before mid-January.