On November 14, 2008, the day our Fall 2008 issue of Insight went to press (containing a brief note on this topic at page 14), the U.S. Department of Labor published its new, long-awaited, final regulations under the Family and Medical Leave Act.  Although the changes have been years in the making, and run hundreds of pages, employers will have little time to adjust their FMLA policies and practices to ensure compliance, as the new regulations take effect on January 16, 2009.  This summary quickly highlights some of the more significant changes.  The full text can be obtained from www.dol.gov/esa/whd/fmla/. The DOL has provided updated forms to assist employers with FMLA administration.

Employer Notice Obligations

• Employers are required to provide general notice about the FMLA (e.g., through a handbook or at hire and through postings); eligibility/rights and responsibilities notice when leave is requested; and designation notice when the employer designates leave as FMLA-qualifying.  The time period to notify employees of FMLA eligibility and designation is extended from two business days to five.

• Employee eligibility notice must be provided at the commencement of the first instance of leave in the applicable 12-month FMLA year.  Once an employee has been determined eligible, the employee remains eligible to take FMLA leave for that serious health condition for the remainder of the leave year (although the employee may exhaust the FMLA entitlement).

Consequence Of Failing To Provide Notice

• An employer’s failure to provide required notice can be considered interference with an employee’s FMLA rights.  If the employee suffers individualized harm, the employer may be liable for the harm suffered, such as lost compensation and benefits, other monetary loss, appropriate equitable relief, or other relief tailored to the harm suffered.

Seven-Year Break In Service

• Prior service with the employer must be counted toward the 12-month eligibility rule unless a break in service of over seven years occurred (subject to certain exceptions).

Serious Health Condition

• To meet the definition of serious health condition involving more than three consecutive full days of incapacity plus two visits to a health care provider, the health care provider visits must take place within 30 days of the first day of incapacity.

• To meet the definition of serious health condition involving more than three consecutive full days of incapacity plus a regimen of continuing treatment, the first visit to a health care provider must take place within seven days of the first day of incapacity.

• Eligible employees with chronic serious health conditions requiring “periodic visits to a health care provider” must visit their health care provider at least twice per year.

Medical Certification Process

• Employers who consider a medical certification to be incomplete or insufficient must notify the employee, in writing, of the additional information that is necessary and allow seven calendar days to cure the deficiency.

• Employers may request a new medical certification each leave year for serious health conditions extending longer than a year.

• Employers are permitted to request medical recertification for ongoing conditions every six months (i.e., even if the certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months).  

• Employers may request and consider medical information obtained through ADA, workers’ compensation, or benefit administration procedures in determining FMLA entitlement.

Medical Certification When Using Substitution Of Paid Leave

• Employers may require that employees use paid time off (e.g., personal days, vacation) concurrently with FMLA leave, and may require an employee using concurrent paid leave to provide sufficient FMLA certification to substantiate the serious health condition. 

Employee Obligations

• Employees in need of FMLA leave must follow their employer’s customary call-in procedures when they miss work, unless there are unusual circumstances.

Fitness For Duty Certification

• Employers may require certification specifically addressing an employee’s ability to perform essential functions of the job, as opposed to a simple statement of ability to return to work. 

• Employers may require fitness for duty certification before returning an employee from intermittent leave when there are legitimate job safety concerns.

Light Duty

• Time spent on light duty does not count against FMLA entitlement.  Job restoration rights are held in abeyance.  At the conclusion of the light duty assignment, the employee has the right to be restored to the job held at the commencement of leave, or to use the remainder of FMLA leave.

Missed Overtime

• Missed overtime must be counted against available FMLA leave when the employee would have been required to work the overtime but for FMLA leave.

Bonus Goals And Incentive Awards

• Bonus awards based on an employee’s achievement of specific goals (e.g., perfect attendance) may be denied to employees who fail to achieve those goals due to FMLA absences, where employees taking non-FMLA leave are treated similarly.

Coverage Of “PEOs” As Joint Employers

• “Professional Employer Organizations” are not joint employers of their clients’ employees if the PEO simply assumes administrative functions such as payroll and benefit administration.  Decisions will be based on the economic realities of the relationship and all facts and circumstances. 

Settlement And Waiver Of Rights

• FMLA waiver provisions apply only to prospective waivers of FMLA rights.  Employees may voluntarily settle or release existing FMLA claims without court or agency approval.

Shannon V. Loverich

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