Changes to the Family Medical Leave Act

New Family and Medical Leave Act (FMLA) regulations interpret the new military family leave entitlements and update the existing regulations under the FMLA. Since 1993 the FMLA has allowed employees to use up to 12 weeks of leave per year to care for a new child, a sick relative or to recover from their own serious health conditions.

Two new categories of leave for military families were added to the FMLA in January 2008. Covered Servicemember Family Leave simply extends from 12 to 26 weeks the amount of FMLA leave available to an eligible employee seeking time off to care for an ill or injured relative when the relative incurred their serious health condition in the line of active duty. The scope of covered relatives for this purpose also increases to include “next of kin.”

Qualifying Exigency Leave, which now takes effect with the new regulations, permits eligible employees to take up to 12 weeks of FMLA leave to handle exigencies related to a family member's active duty military service or call to active duty. Under the new regulations, an eligible employee may take leave for one or more of the following "qualifying exigencies": (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) other activites that are agreed on by the employer and employee.

The new regulations also clarify or change other obligations, and provide revised forms. Listed below are the major impacts the new regulations will have on employers.

Notice of FMLA Rights: Employers must give new hires notice of the FMLA policy. If an employee handbook is provided, the notice requirement can be met by placing the information in the handbook. Display of a poster remains a requirement under the new regulations.

Five Days to React When Leave is Needed. The new regulations require employers to send off various forms and notices to employees within five days of learning that an employee may need leave. The good news is that this is an increase from the two days provided under the old regulations. In addition, the process is better defined and the DoL provides the needed forms on its website. (See http://www.dol.gov/esa/whd/fmla/). The regulations also explicitly recognize retroactive designation of FMLA leave as long as it does not harm the employee’s rights.

New Medical Certification Forms : As part of the new regulations, the DOL has created several new medical certification forms, one for use in considering an employee's own serious health condition and another for use when an employee requests leave to care for a family member with a serious health condition.

Notification of Certification Deficiencies: The final regulations require employers to notify employees in writing if the employer determines that a medical certification is incomplete or insufficient. The employer must state in writing what additional information is necessary and give the employee seven days to cure the deficiency. If an employee does not cure the deficiency, the employer may deny FMLA leave. Most employers probably did this anyway, when certification was deficient, but the process is now more clearly defined.

Contacting Employee’s Doctor: The new regulations provide that an employer may contact an employee's health care provider to clarify or authenticate the medical certification if the employee has not cured deficiencies in the certification. The employer must use a health care provider, human resources professional, leave administrator or management official to make that contact, but not the employee's direct supervisor. Employers may not ask health care providers for additional information beyond that required by the certification. Communication with the health care provider may require the employee to provide authorization compliant with the Health Insurance Portability and Accountability Act (HIPAA), but if the employee refuses to provide the employer with authorization and does not otherwise clarify the certification, the employer may deny the FMLA leave.

Prior Employment Counts for Eligibility: The new regulations expand eligibility by extending the requirement of 12 months of employment to include time worked before a break in service of less than seven years. (If the break in service was due to military service, the employer must count prior employment periods preceding a break in service of more than seven years). This does not affect the requirement that the employee provide at least 1250 hours of service within the preceding 12 months, however.

Employee Notice Requirements: Under the new regulations, an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, closing an apparent loophole in the previous regulations.

Although there are a number of changes to the FMLA regulations, sophisticated employers will not change their approach to FMLA leave very much. It is important to download and use the new forms, and ensure that an FMLA notice of rights or an FMLA policy is included in the packet of materials you give to newly hired employees. Take a more deliberate approach to requests for FMLA leave in the weeks ahead, consulting counsel as needed to ensure that your procedures continue to hold up under the new regulations.