2009 Regulatory Changes to the Family and Medical Leave Act (FMLA)

On January 16, 2009, the revised regulations under the federal Family and Medical Leave Act (FMLA) went into effect. There are too many changes to cover everything in detail but this article but this will give you a helpful overview. Since compliance with the FMLA is complex and dependent upon each company's processes, it is important that you work closely with your legal counsel and human resources department to determine what you may need to do under the new regulations. Also, remember that if you are subject to similar state leave laws, you need to comply with the combination of federal and state law that is most favorable to your employees.

Until 2009, the FMLA regulations had not been changed since they went into effect in 1995. Covered employers and employees have been largely left to their own devices to figure out some of the more complex requirements. To make matters worse, different federal courts have interpreted compliance requirements inconsistently. The recent changes to the regulations were intended to help simplify things for everyone by providing more information in some areas and clarifications in others. Only time will tell if they work as intended but some of the changes should make things a little easier for employers to comply. Also included in the revised scheme are regulations that apply to FMLA leave related to military service.

The new regulations provide, in summary:

• Employee Eligibility: To determine whether an employee has been employed by an employer for at least 12 months, the regulations clarify that employment does not need to be consecutive. Also, the regulations clarify that eligibility is not determined as of the date the leave begins. Eligibility may begin after the leave has already started.
• Serious Health Condition: There is a new regulation that specifies the ways in which an employee can show they are receiving "continuing treatment" from a health care provider when they’ve been incapacitated for more than three consecutive full calendar days.
• Counting Holidays as FMLA Leave: The revised regulations give specific information about when holidays can be counted toward FMLA leave based on whether the employee is taking a full or partial week of FMLA leave.
• Substituting Paid Leave: The revised regulations also address paid leave when an employee elects to use paid leave in place of unpaid leave. In that case, an employer can require the employee to follow the requirements under the paid leave policies but the time will still count toward the employee's FMLA allotment.
• Bonuses and Incentives: There are significant changes to the bonus provisions. Previously, FMLA leave could not be considered in deciding eligibility for or calculating bonuses on things like perfect attendance or safety records. Now, employers are allowed to consider FMLA absences in determining bonuses based on achievement of specific performance goals, as long as there is no discrimination in treatment between the impact of FMLA and non-FMLA absences.
• Light Duty: The regulations clarify that voluntary light duty assignments do not count against FMLA entitlements. Also, if an employee is on a voluntary light duty assignment, the employee maintains his or her right to job restoration from light duty until the end of the applicable 12 month FMLA leave year.
• Waivers of FMLA Rights: The regulations clarify that employees can settle or release FMLA claims regarding prior employer conduct without getting Department of Labor or court approval.
• Employer Notice: There are now three required employer notices: 1) an updated poster and general notice requirements for all employees; 2) a new Notice of Eligibility and Rights and Responsibilities Form; and 3) a new Designation Notice. The regulations provide guidance on use of all three, including content and the time periods for giving the notices. Importantly, employers now have five days, not two, for telling employees about their FMLA eligibility after learning the employee needs the leave. The penalties for failure to comply with notice requirements have also been changed.
• Employee Notice: Employers can now require written notice of the need for leave consistent with their usual and customary notice and procedure requirements. Leave can be delayed or denied if an employee does not comply. Also, if the request is for additional FMLA leave for a condition that was previously certified, the employee must specifically refer to the FMLA or the condition for which FMLA leave was already taken. Lastly, the one- to-two-day business requirement for notice of unforeseeable leave was eliminated; notice now needs to be given as soon as practicable under the specific circumstances.
• Medical Certification: New forms have been published to make it easier for employers to get better medical information for verifying serious health conditions. There are now two separate medical certification forms for an employee's own serious health condition and for leave to care for a family member. Also, employers can now ask for information about a health care provider's specialization and fax number, an employee or family member's diagnosis, medical certification that intermittent or reduced leave is medically necessary, a statement specifying which essential job functions an employee cannot perform, and more detailed information on the anticipated frequency and duration of intermittent and reduced schedule leaves.
• Medical Information: Employers are now allowed to contact an employee's health care provider directly, without advance approval of the employee, to authenticate information on a medical certification. The rules specify who is and is not permitted to make this contact on behalf of an employer. If a medical certification is incomplete or insufficient, employers need to give employees written notice regarding what information is needed and provide at least seven calendar days (if not more) for the employee to return the additional information.
• Medical Certifications: Second and Third Opinions: Employee authorization is required for the release of medical information to second/third opinion health care providers regarding the condition for which leave is needed.
• FMLA and ADA: Employers are now allowed to consider, for determining FMLA issues, information about medical conditions the employer received for addressing disability status under the Americans with Disabilities Act or workers' compensation laws.
• Recertification: The new regulations clarify when and how often employers may request recertification of an FMLA qualifying condition.
• Fitness for Duty: When an employer can request fitness-for-duty certifications, as well as the information that may be requested, has been clarified. Also clarified is when and how often an employer can request a fitness-for-duty certification associated with intermittent or reduced schedule leave.
• Caring for Injured Service Members: There are finally regulations regarding the 2008 FMLA amendments to provide FMLA leave to care for injured service members. The regulations define and prioritize who is "next of kin." They also allow service members to designate another blood relative as the nearest blood relative and provide details regarding the calculation of leave, the length of leave, certifications that can be required, and the type of information an employer is permitted to request about a service member's condition. New forms have also been created.
• Leave for Qualifying Exigency: The 2008 FMLA leave for a "qualifying exigency" associated with a family member being called to military duty is addressed in the regulations too. Included is information on the definition of a "qualifying exigency," which family members are eligible for the leave, on whose behalf the leave may be taken, how the length of leave is calculated, certification requirements and forms, and the type of information an employer is permitted to request regarding military orders to deploy.

If your business is covered by the FMLA, it's very important for you to review your current policy and processes with legal counsel and human resources so you can make any necessary changes immediately. For the most part, the new regulations bring some clarity to areas that were previously difficult to navigate. Challenges do remain but overall there is a little more guidance now for employers.

Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.

Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.