Employment Update
March 2009


In November, the Department of Labor ("DOL") issued final regulations implementing the Family and Medical Leave Act of 1993 ("FMLA"). The regulations, which took effect on January 16, 2009, modified a number of features of the FMLA. The following is a brief summary of the key changes that employers need to know. ARE YOUR COMPANY'S EMPLOYEE HANDBOOKS AND POLICY PROTOCOLS UP TO DATE AND IN COMPLIANCE?


As the Department of Labor explains: The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that group health benefits be maintained during the leave.

The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers, and promotes equal employment opportunity for men and women.

The Family & Medical Leave Act:

  • Covers only certain employers;
  • Affects only those employees eligible for the protections of the law;
  • Involves entitlement to leave;
  • Maintains health benefits during leave;
  • Restores an employee's job after leave;

I. Eligible Employees: Breaks In Employment

In order to be eligible for FMLA leave, an employee must have been employed by the employer for at least twelve months. The new regulations provide that if the employee had a break in service that lasted seven years or less, the employee's service prior to the break shall be counted in determining whether the twelve month rule has been satisfied. Additionally, an employee's service preceding a break of more than seven years is counted if the break was caused by a National Guard or Reserve military obligation, or if the break was part of a "written agreement, including a collective bargaining agreement concerning the employer's intention to re-hire the employee after the break."

II. Leave Entitlement

A. Compliance with Employer Notice and Procedure Policy May Be Required

The new regulations allow an employer to require that employees comply with the employer's "usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances."

B. Concurrent Use of Paid Vacation, Personal and Sick Leave

The new regulations also apply uniform rules to concurrent use of paid vacation, personal leave and sick leave: 'all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic paid time off)."

C. Light Duty Work

The new regulations also change the FMLA's treatment of light duty work. As before, if a health care provider certifies that an employee on FMLA leave is able to return to light duty work, but not to his or her original position, the employee can either choose to perform light duty work or continue on FMLA leave until the entitlement ends. Under the new regulations however, if the employee chooses to perform light duty work, the time spent performing such work does not count against his or her FMLA leave entitlement. In sum, "if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave," but may still have FMLA job restoration protection (assuming the employee's twelve month FMLA leave period has not ended).

D. Overtime Work

The new regulations also address overtime work. If an employee would normally be required to work overtime, but cannot do so because of FMLA leave, "the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement." In contrast, an employee's inability to work voluntary overtime hours cannot be counted against his or her FMLA leave entitlement.

III. Employer and Employee Notice Obligations

A. Employer Notice Requirements


First, the new regulations allow employers to post the required notice explaining the FMLA provisions electronically, provided that employees and applicants can access the notice. However, employers must also provide notice "to each new employee upon hiring" in an employee handbook or other format.

Second, the regulations require an employer to notify an employee about his or her eligibility for FMLA leave within five business days ("absent extenuating circumstances") of the employee requesting such leave or the employer becoming aware that the employee's absence may be for an FMLA-qualifying reason. If the employee is ruled ineligible for FMLA leave, the employer must provide at least one reason why FMLA leave was denied in the notice. However, if the employee is ruled eligible for FMLA leave, all absences for the qualifying reason for the next year are considered part of a single FMLA leave.

Third, the FMLA also requires the employer provide employees notice that explains the specific FMLA expectations and obligations (this can be included with the medical certification form).

Fourth, if the requested FMLA leave is approved, the employer must provide notice "designating leave as FMLA-qualifying" within five business days (absent extenuating circumstances) of receiving "enough information to determine whether leave is being taken for a FMLA-qualifying reason."

B. Employee Notice Requirements

For foreseeable leave, the FMLA requires that the employee notify the employer at least 30 days before the leave is to begin. If this is not possible, notice must be provided to the employer "as soon as practicable." The DOL has stated that it should be "practicable" to provide notice "either the same day or the next business day" that the employee becomes aware of the foreseeable leave.

In the case of foreseeable leave, the employee's notice to the employer must be sufficient to make the employer "aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave."

In contrast, for unforeseeable leave, notice must be given "as soon as practicable." The new regulations explain "it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave."

For unforeseeable leave, the notice must provide "sufficient information for an employer to reasonably determine whether the FMLA will apply to the leave request." For an employee's first time FMLA request, the employee does not need to actually use the term "FMLA." However, if the employee is seeking FMLA leave for a qualifying reason that the employer has previously granted FMLA leave for, then the employee "must specifically reference either the qualifying reason for leave or the need for FMLA leave."

IV. Medical Certification

A. Timing

Employers now have five days (rather than two) from the time an employee requests FMLA leave (or the time an unforeseeable FMLA leave begins) to request medical certification from the employee.

B. Vague, Ambiguous or Non-Responsive Medical Certification Forms

If an employee returns an incomplete, "vague, ambiguous or non-responsive" medical certification form, the employer must provide the employee seven calendar days to cure the problem (unless that time frame is "not practicable under the particular circumstances despite the employee's diligent good faith efforts"). If the deficiency is not cured within seven days, the employer may deny the FMLA leave.

C. Direct Contact with Employee's Health Care Provider

The new regulations allow an employer representative to contact the employee's health care provider directly to clarify or authenticate information from the medical certification form, after the employee has been given seven days to cure any defects. However, the employee's "direct supervisor" may never contact the health care provider directly. Rather, contact must be made by the employer's HR department, health care provider, leave administrator or other management official.

D. Extended and Chronic Medical Conditions

The new rules also allow employers to ask for a new medical certification form each year, if the employee requires FMLA leave for more than one year (for an extended or chronic medical condition of the employee or the employee's family member).

E. Employer's Right to Review Employee's ADA or Worker's Compensation Paperwork

Finally, the new regulations allow employers to use employee provided information from Americans with Disabilities Act (ADA) requests and workers' compensation claims in evaluating the employee's FMLA leave request (e.g. to evaluate the employee's FMLA medical certifications form).

V. Fitness For Duty Certification

Under the new regulations, when employers request fitness for duty certifications for employees returning from FMLA leave, the employers can "require that the certifications specifically address the employee's ability to perform the essential functions of the employee's job." In addition, employers may now ask for fitness for duty certificates once every 30 days for employees who are on intermittent or reduced work leave, if "reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took such leave."

VI. Effect of FMLA Leave on Employee Incentive Awards

The new regulations provide that employees who return from FMLA leave may be denied payment for specific incentive awards (e.g. for perfect attendance, selling a certain number of products or working a certain number of hours) that they failed to achieve due to the FMLA leave, "unless [the awards are] otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave."

VII. Releases of FMLA Liability

The new regulations allow employees to voluntarily release actual or potential FMLA claims against an employer without court or DOL approval. In contrast, prospective waivers of FMLA claims continue to be prohibited.

VIII. Military Family Leave

A. Military Caregiver Leave

The updated regulations now cover military family leave. Specifically, employees are now eligible for 26 workweeks of leave in a single twelve month period to care for a family member who is also a covered service member. This FMLA leave applies when the family member is caring for a service member who is on the temporary disability retired list, has a serious injury or illness "incurred in the line of duty on active duty" for which he or she is undergoing medical treatment, recuperation or therapy, or is on outpatient status.

B. National Guard or Reserve Qualifying Exigency Leave

The new regulations also provide "qualifying exigency" leave for employees who have a family member that is a member of the National Guard or Reserves. This exigency leave allows for the standard twelve workweeks of FMLA leave. The qualifying exigencies include: short notice deployment; military events/activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; and post-deployment activities.

IX. Definition of Covered Employees in Outsourcing Situations

The FMLA generally applies to employers with 50 or more employees. But what happens when the employer relies on outside sourcing to meet staffing and business needs? The new regulations provide guidance on this issue.

Joint employment exists when a temporary employment agency supplies workers to a second employer. Under the regulations, the worker is classified as an employee of both the second employer and the temporary employment agency.

In contrast, the new regulations create a different rule for Professional Employer Organizations ("PEOs"). PEOs or HR outsourcing vendors, contract with client employers to perform specific administrative tasks (e.g. human resources assignments). Under the new FMLA regulations, the PEO ordinarily does not become a joint employer of its clients' employees when it merely performs administrative functions. However, if the PEO has the right to hire, fire assign or direct and control its clients' employees, then the PEO may be classified as a joint employer.

X. Unforeseeable Intermittent Leave

Unforeseeable intermittent leave was the most commented on aspect of the original FMLA regulations; the new regulations provide a slight modification in the applicable rule. Employees are still required to schedule intermittent leave for planned medical treatment in a manner designed not to disrupt the employer's operation. However, the required effort for meeting this requirement has increased from merely "an attempt" to "a reasonable effort." Reasonable effort is not defined in the regulations, but the commentary explains that what constitutes a reasonable effort depends on the nature of the employee's medical condition, the urgency, nature and extent of the treatment and the length of recovery time (as determined by the health care provider).

This update is only a summary. The attorneys at Singler, Napell & Dillon, LLP can help you understand the full impact this update may have on your business. If you have any question, please contact Corey Mostafa at (707) 823-8719 or CFM@singler-law.com.

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