Real Workplace Issues 		)
December 2008
The New FMLA Regulations
  • Eligible Employees
  • Employer General Notice Obligations
  • Employer Specific Notice Obligations
  • Employee Notice Obligations
  • Medical Certifications
  • Intermittent Leave
  • Fluctuating Work Schedules
  • Military Family Leave
  • Miscellaneous Issues

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    Welcome to the latest installment of "Real Workplace Issues," a newsletter dedicated to providing our clients and friends with practical, everyday employment law and HR information.

    The U.S. Department of Labor (DOL) has released final revised Family and Medical Leave Act (FMLA) regulations which become effective on January 16, 2009. The final regulations have both changed and clarified numerous aspects of the FMLA.

    While this newsletter is rather lengthy (for which we apologize right before the holidays!), we have nevertheless provided a basic outline of just some of the changes contained in the final regulations. As always, we are available to assist you in updating your FMLA policies, direct you to information regarding the new FMLA poster and forms, and develop procedures for proper FMLA administration.


    		Eligible Employees

    The final regulations retain the original requirement that an employee be employed by an employer for at least 12 months and 1,250 hours in the 12 months preceding a request for FMLA leave. The regulations clarify, however, that an employee's prior service with an employer must be counted toward the 12-month requirement if the break in service does not exceed seven years. This seven-year rule does not apply to employees whose break was due to military service or an approved leave of absence.

    		Employer General Notice Obligations

    The final FMLA regulations expand employers' general notice obligations to employees. All covered employers are required to post a general notice of FMLA rights (i.e., the new FMLA poster), regardless of whether they have employees who are eligible for FMLA leave.

    In addition, employers who have at least one FMLA-eligible employee and who distribute employee handbooks (or similar publications) must include the required general notice information in those materials. Employers who do not distribute such publications must provide new employees with a copy of the general notice of FMLA rights upon hire.

    The final regulations also state that this notice may be distributed electronically.

    		Employer Specific Notice Obligations

    The final FMLA regulations provide that employers must provide employees with notice of both their "eligibility" for FMLA leave and their "rights and responsibilities" regarding that leave within five business days after either (a) the employee requests FMLA leave, or (b) the employer learns that the employee's leave may be for an FMLA-qualifying reason.

    This notice details the specific expectations and obligations of employees under the FMLA, and explains the consequences of failing to meet those obligations. The notice must also inform the employee of any additional requirements for the concurrent use of paid leave and FMLA leave, as well as the fact that the employee remains entitled to unpaid FMLA leave even if he/she chooses not to meet the terms and conditions of the employer's paid leave policy. The DOL has issued optional Form WH-381, a sample eligibility/rights and responsibilities notice, that employers may use or customize.

    Under the final regulations, employers must also provide employees with written notice that the leave they requested will be "designated" as FMLA leave. Employers must provide this notice to employees within five business days of obtaining sufficient information to determine whether an employee's leave is covered under the FMLA (i.e., within five business days of receiving satisfactory medical certification of the need for leave).

    Employers may utilize the new optional Form WH-382 as their designation notice. Included in the information that must be provided to an employee in such notice is the specific amount of time that will be counted against the employee's FMLA entitlement. In the event an employer is not able to provide the employee with such information ahead of time, the employee is permitted to request such information every 30 days, if leave was taken in that period.

    Finally, the regulations clarify that retroactive notice of FMLA designation is permissible only if it does not cause the employee harm or injury.

    		Employee Notice Obligations

    The final regulations reflect several changes in an employee's notice obligations when requesting FMLA leave.

    The regulations attempt to remove the "guess work" for employers by requiring employees requesting FMLA leave to sufficiently explain the reasons for the leave. If the need for leave is foreseeable, employees must provide at least 30 days' notice or "as soon as practicable."

    Employees who request additional FMLA leave for a condition for which he/she previously received FMLA leave, must specifically reference the qualifying reason or need for FMLA leave. In addition, employees must clarify/explain their need for intermittent leave if requested by their employer.

    Employees may now be required to comply with an employer's "customary notice and procedural requirements" for requesting leave (absent unusual circumstances). This allows employers to apply the procedures they have in place for requesting non-FMLA leave to situations involving a request for FMLA leave.

    The regulations also note that "calling in sick," absent no additional information, is insufficient to trigger FMLA obligations, so long as employees are made aware of such policy beforehand.

    		Medical Certifications

    The final regulations reflect changes in the procedures regarding initial medical certifications, medical recertification and fitness-for-duty certifications.

    Employers have been granted increased flexibility under the final regulations as they now have five business days to request an initial medical certification after receiving notice of the need for leave (or five business days after the leave has commenced in the case of unforeseen leave). Employees then have 15 calendar days to return the completed medical certification form. The DOL has issued two new optional medical certification forms: Form WH-380 E (for Employee's Serious Health Condition) and Form WH-380F (for Family Member's Serious Health Condition).

    Employers may request recertification every 30 days in connection with an absence for chronic or long-term illnesses or pregnancy. Employers may request recertification in less than the 30 day increment if the employee asks for an extension of leave, circumstances have changed or the employer doubts the employee's medical status (i.e., the employer discovers that the employee ran in a marathon when that employee is on FMLA leave due to severe leg problems). In addition, in all circumstances, employers may now request recertification every six months in connection with an absence.

    Employers can now request a fitness-for-duty certification addressing the employee's ability to perform the essential functions of his/her job, so long as the employer provides the employee with a list of these essential functions along with the designation notice. In situations where an employee takes intermittent FMLA leave, an employer may request a fitness-for-duty certification every 30 days upon the existence of "reasonable safety concerns." Under the final regulations, second and third opinions are prohibited in connection with fitness-for-duty certifications.

    With regard to all types of medical certifications, the final regulations provide guidance for employers who receive a certification that is either "incomplete" (something on the form is not filled out or is missing) or "insufficient" (something on the form is vague, ambiguous or non-responsive). In such cases, employers must "state in writing what additional information is necessary to make the certification complete and sufficient." Employees thereafter have (in most cases) seven calendar days to cure the referenced deficiencies.

    In cases where an employer wishes to authenticate or clarify a medical certification, the final regulations allow the employer to directly contact an employee's health care provider provided the employee is first given the opportunity to fix the deficient certification and waives that opportunity. But employers beware:
    • Only human resources professionals, leave administrators, third party administrators and management officials may contact the health care provider. Under no circumstances may an employee's direct supervisor contact the employee's health care provider.

    • The purpose of contacting the employee's health care provider must be for clarification or authentication. An employer is not allowed to contact an employee's health care provider for the purpose of obtaining additional information.
    The final regulations also highlight the consequences for an employee who does not provide proper notice or fails to satisfy his/her certification requirements.

    		Intermittent Leave

    The final regulations provide considerable guidance on one of the more daunting aspects of FMLA administration - intermittent leave.
    • Employees who seek intermittent leave for planned medical treatment are required to make a reasonable effort to schedule the leave so as to avoid unduly disrupting the employer's operations.

    • Employees may not be charged for intermittent FMLA leave during periods in which they actually perform work.

    • In extremely limited circumstances, where the nature of the workplace makes it physically impossible for employees to join or leave work mid-way through a shift, the entire period of absence may be considered FMLA leave even if the employee could have started work sooner. For example, a flight attendant who is scheduled to work a seven-hour flight takes two hours of intermittent FMLA leave for medical treatment beginning at 5 p.m., the same time the flight she was scheduled to work on departs. Since she will be physically unable to access her worksite (i.e., the airplane) after her treatment has concluded, she will be charged for all seven hours of FMLA leave.

    • An employer must track and account for intermittent /reduced schedule leave under FMLA "using an increment 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."

    • When an employee is on leave for a full week and an employer is closed during that week for a holiday, the employee is nevertheless charged with an entire week of FMLA leave. If, however, the employee needs less than one full week of FMLA leave, a holiday will only count against the employee's FMLA entitlement if that employee would have otherwise had to work during that holiday.

    		Fluctuating Work Schedules

    The final regulations lay out a formula for employers to use when calculating the amount of FMLA leave taken by an employee who has a fluctuating work schedule (i.e., the employee's work schedule varies from week-to-week).

    In addition, employers must now use a weekly average over the 12 months prior to the FMLA leave period when determining the FMLA leave entitlement of an employee who works a fluctuating work schedule.

    		Military Family Leave

    There are two military family leave provisions included in the FMLA: military caregiver leave and qualifying exigency leave.

    (1) Military Caregiver Leave

    Under military caregiver leave, an employee who is the spouse, parent, son/daughter (without respect to age), or next of kin of a covered servicemember who incurred a serious injury or illness while on active duty, may be eligible for up to 26 weeks of FMLA leave in a single 12-month period.

    The final regulations define "covered servicemember," "next of kin," "serious injury or illness," and "single 12-month period" (which is distinct from the 12-month period established by the employer for other types of FMLA leave). The regulations also provide guidance on how employers must designate leave that qualifies as both military caregiver leave and leave taken to care for a family member with a serious health condition.

    Under the final regulations, a husband and wife employed by the same employer are limited to a combined total of 26 workweeks of leave during the relevant 12-month period, if the leave is taken to care for a covered servicemember.

    Finally, as with fitness-for-duty certifications, second and third opinions are prohibited in connection with leave to care for a covered servicemember.

    (2) Qualifying Exigency Leave

    Under qualifying exigency leave, an eligible employee is entitled to up to 12 weeks of unpaid leave during a 12-month period because of a "qualifying exigency" arising out of the fact that a spouse, parent, or child is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. (This leave is available to a family member of a military member in the National Guard or Reserves; it does not apply to active duty served by a member of the Regular Armed Forces.)

    The final regulations set forth the following exclusive list of reasons (with explanations) for which an eligible employee can take qualifying exigency leave:
    • Short-notice deployment;

    • Military events and related activities;

    • Childcare and school activities;

    • Financial and legal arrangements;

    • Counseling;

    • Rest and recuperation;

    • Post-deployment activities; and

    • Additional activities.

    In addition, the DOL has issued two new optional medical certification forms in connection with military family leave: Form WH-385 (for Military Caregiver Leave), and Form WH-384 (for Qualifying Exigency Leave).

    		Miscellaneous Issues

    The following are some additional, miscellaneous issues addressed and clarified by the final regulations:
    • Professional Employer Organizations (PEOs) and temporary placement agencies may be considered "joint employers" for the purposes of determining FMLA coverage.

    • In cases where an employee would have worked overtime "but for" the taking of FMLA leave, that missed overtime must be counted against the employee's FMLA leave entitlement.

    • Employers may require, and employees may request, that paid leave (paid vacation, personal days, paid time off, sick leave) run concurrently with unpaid FMLA leave (so long as the employee is not also receiving disability benefits). In such situations, the terms and conditions of the employer's paid leave policies must be followed by the employee (so long as they are non-discriminatory).

    • While neither the employer nor the employee may require that paid leave run concurrently with unpaid FMLA leave when the employee is receiving disability benefits, an employer and employee may mutually agree to run paid leave concurrently with FMLA leave to supplement disability benefits.

    • Time spent performing "light duty" does not count toward an employee's FMLA leave entitlement.

    • Employers may disqualify employees from bonuses based on "perfect attendance" or similar attendance goals where the employee fails to meet the attendance requirements due to taking FMLA leave, so long as other employees who take other types of leave are similarly disqualified.

    • Employees and employers are now allowed to voluntarily settle past claims (e.g., in the form of a waiver/release) without first obtaining the permission or approval of a court or the Department of Labor.

    • Employees who have their rights "interfered with" by an employer may be granted broad equitable relief (in addition to actual monetary losses).

    As you can see, the changes reflected in the final regulations are extensive and complex. This newsletter was meant to provide you with a brief overview of some of these changes. We recommend that all employers who are covered by the FMLA seek counsel with regard to the final regulations, and how they affect your organization's policies and procedures.


    We welcome your comments and suggestions on our newsletter. Feel free to contact us at the e-mail address provided below.

    This article is provided for informational purposes only and is not intended to be legal advice nor does it create an attorney-client relationship between Halpern Employment Law Advisors and any reader.

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