New Family Medical Leave Act Regulations Enhance Employers' Opportunities to Manage Leaves of Absence

For the first time since the Family Medical Leave Act ("FMLA") was enacted in 1993, the Department of Labor (the "DOL") has updated the interpretative regulations that apply to the law. The new and revised regulations affect FMLA in a number of areas, but the DOL's primary purpose was to (1) extend FMLA rights to service members and their families, as provided by the 2008 National Defense Authorization Act, (2) clarify employer and employee notice obligations, medical certification requirements, the impact of "light duty" assignments on FMLA leave, and waiver of FMLA rights, and (3) make some changes that reflect decisions of the Supreme Court and lower courts. The regulations are effective on January 16, 2009.

The regulations explain the newest forms of FMLA leave that employees may take to care for family members who are ill or injured as a result of military service and that service members may take to address "qualifying exigencies." The new FMLA leave provides two types of leave:  "caregiver leave" and "active-duty family-member leave." 

Caregiver Leave:  Caregiver leave allows up to 26 weeks of leave during a single 12-month period to a spouse, child, parent, or next of kin serving as the caregiver of an active-duty military member who suffered an injury or became ill. Employees who qualify for caregiver leave receive a combined total of 26 workweeks of leave during a single 12-month period. Regardless of what method the employer uses normally to determine the 12-month period, for caregiver leave the 12-months begins on the first day of the leave. Caregiver leave does not count against regular FMLA leave time, though total leave within the 12 months cannot exceed 26 weeks. Thus, for example, if the employee took 20 weeks of caregiver leave, he or she would still be able to take an additional 6 weeks of regular FMLA leave. 

Active-Duty Leave:  Active-duty family member leave is a new category of basic 12-week FMLA leave available to relatives of members of the National Guard, Reserves, or certain retired military which provides leave for qualifying exigencies when an employee's spouse, child, or parent is on or called to active duty. Active-duty leave is not available to relatives of service members of regular armed services. Also, active-duty family member leave is not in addition to other regular FMLA leave. The new regulations define "qualifying exigencies" to include (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities if the employer and employee agree to the leave. The regulations also provide that the procedures used when taking military family leave should be the same as those used for other types of FMLA leave, whenever possible, for the purpose of easier implementation and administration. 

Notice Requirements:  Employer notice obligations now provide that in all circumstances, the employer (not the employee) is responsible for designating leave, paid or unpaid, as FMLA-qualifying. The employer is required to give notice of the designation to the employee. Additionally, the employer must provide the employee with a FMLA eligibility notice and, if the employee is not yet eligible for leave, a notice informing the employee of the number of months the employee has been employed by the employer or other reason why the employee is ineligible. Regarding employee notice requirements, the new rules require that the employee must follow the employer's customary call-in procedures, except in unusual circumstances. This regulation modifies a provision that was previously interpreted to allow some employees to notify their employers of their need for FMLA leave up to two days after an absence, even if they could provide notice sooner. 

Use of Paid Leave:  The updated regulations require an employee electing to use any type of paid leave concurrently with unpaid FMLA leave to satisfy the customary terms and conditions of the employer's policy, such as eligibility and notice requirements. One significant change is that employers are now permitted to deny a "perfect attendance" award or bonus to an employee on the basis of FMLA-covered absences so long as the employer treats employees taking non-FMLA leave the same way. Additionally, the regulations now allow employers to retroactively designate employee absences as FMLA leave once it comes to their attention that the absences were FMLA-qualifying. 

Contacting The Employee's Health Care Provider:  Under the new regulations, an employer's representative, such as a human resources professional or leave administrator (but not a direct supervisor), may contact the employee's healthcare provider to clarify the information contained on the medical certification form. In addition, the regulations specify that if an employer deems a certification incomplete or insufficient, the employer must describe the deficiency in writing and give the employee seven days to address the issue. If the employee does not meet the deadline, the employer may deny the leave. The new regulations also clarify for employers when they may seek recertification of an employee's ongoing eligibility for FMLA leave.

Light Duty Assignments:  Another key regulatory change provides that while employers may not require employees to perform modified or light-duty work in lieu of taking FMLA leave, employees may voluntarily agree to do light-duty work. But when an employee is on light-duty, the employee is not on FMLA leave, the employee's FMLA leave entitlement is not affected, and the employee's job-restoration right is held in abeyance. 

Voluntary Settlement of FMLA Claims:  Finally, the DOL enacted a regulation codifying its position that employees may voluntarily settle their FMLA claims without court or departmental approval, but cannot prospectively waive their FMLA rights.
 
To protect themselves from inadvertently violating any of the new FMLA requirements, employers should become familiar with the areas that have been affected, review the updated regulations when analyzing leave issues, and examine and post the new and revised postings and forms corresponding with the regulatory changes that have been issued by the DOL. 

Related Areas
Employment Law and Labor Relations