DOL Issues New Final FMLA Regulations Addressing a Number of Topics, Including the New Military-Related Leaves, Notice Requirements, Intermittent Leave, and Medical Certification Procedures.


December 09, 2008
Introduction

On November 17, 2008, the U.S. Department of Labor (DOL) published final regulations making numerous changes to its existing regulations which implement the Family and Medical Leave Act (FMLA). These new regulations go into effect on January 16, 2009 - 60 days after the publication date. The new regulations have made some significant changes and clarifications to the current regulations. In addition, the regulations implement the new military family leave provisions under the National Defense Authorization Act (NDAA), which was added to the FMLA in January 2008.

A full copy of the new final FMLA regulations, which total 201 pages, can be found at: http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763 (the text of the new regulations begins on page 68073 of the document or page 141 of the pdf file).

Below, we will outline and analyze the impact of these new FMLA regulations for private sector employers.

Modifications To Existing FMLA Provisions

Eligibility Requirements

To be FMLA eligible, a private sector employee must have been employed by an employer with 50 or more employees for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave. If the employee meets these requirements, the employee is then eligible for a FMLA leave of absence so long as the employer has 50 or more employees employed within 75 miles of the employee’s primary place of business. As discussed below, the new regulations help clarify how employees can meet these eligibility requirements.

Calculating 12 Months of Service

Under the final regulations, an employee’s 12 months of employment need not be consecutive and can include an employee’s overall employment with an employer within the past seven years to satisfy this requirement. However, the employer must count employment prior to a continuous break in service of seven years or more if:

  • The employee’s break in service is due to the fulfillment of his or her National Guard or Reserve military service obligation, or;
  • A written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service.

The final regulations also clarify that any week an employee is maintained on the payroll is considered to be a week of employment for the purposes of calculating the 12 months of service, even if the employee was on a paid or unpaid leave of absence during the workweek. Therefore, an employee may attain FMLA eligibility while out on an unprotected leave of absence if the employee has the requisite 1,250 hours of service and satisfies the requirement for 12 months of employment during the leave. It was previously unclear as to whether someone could become eligible for FMLA leave while out on a leave of absence if their 12 months of service did not accrue prior to the leave. This is an important clarification which could invoke FMLA rights for employees who begin a leave of absence without FMLA protections (including the right to reinstatement and maintenance of health benefits), and then gain such protections during the leave of absence.

Calculating 1,250 Hours of Service in a 12-Month Period Preceding the Leave

The regulations note that, for an employee to reach the 1,250 hours of service in a 12-month period preceding the leave of absence, the hours of service follow the "hours worked" definition under the Fair Labor Standards Act (FLSA). The FLSA only considers "hours worked" to be those where an employee actually performs work for an employer. This does not include sick leave, vacation leave, holiday pay, or other hours where no actual work is performed, even if the employee is on paid status.

The regulation also clarifies that the determination of whether an employee has completed the requisite 1,250 hours of service in the past 12 months must be made as of the date the FMLA leave of absence is to start and not at the time the FMLA leave is requested.

This new regulation also codifies the requirement under the Uniformed Services Employment and Reemployment Rights Act (USERRA) that employees returning from National Guard or Military Reserve service receive the rights and benefits they would have had if they had been continuously employed with respect to FMLA leave. Thus, an employer must credit an employee returning from National Guard or Military Reserve service with hours of service for FMLA qualifying purposes for any hours of service that the employee would have worked but for the period of military service. The employee’s pre-service work schedule can be used to make this calculation.

Reaching Determination of Whether 50 or More Employees are Employed Within 75 Miles

The general determination of an employee’s eligibility based on whether the employer has 50 or more employees employed within 75 miles of the employee’s worksite is made as of the date the FMLA leave is requested, rather than when the FMLA leave is to begin. If an employee is jointly employed by two or more employers and is eligible for FMLA, the employee’s worksite is the primary office assigned among the joint employers unless the employee has been physically assigned for at least one year to another facility.

If the affected employee has no fixed office worksite (e.g. salespersons, telecommuters), then the primary worksite is the office where the employee primarily reports. Therefore, the 75 mile rule for an eligible telecommuter employee would apply to the primary worksite where the employee reports, not the employee’s place of residence where he/she telecommutes.

Finally, the new regulations confirm the DOL’s position that the calculation of the 75 mile distance is measured by surface miles using public roads, highways and waterways by the shortest route from the facility where the employee needing leave is employed. This clarified any confusion over the 75 mile distance being solely a geographical radius, rather than an actual surface route.

FMLA Terms Clarified

The DOL also used the new regulations to define further and clarify previously vague definitions used to interpret the FMLA. Below is a summary of these clarified terms:

"Serious Health Condition"

Currently, one of the six definitions of a "serious health condition" involving continuing treatment includes an individual who has a period of incapacity for more than three consecutive calendar days if the employee or family member is treated two or more times by a health care provider. The new regulations clarify this definition to note that the individual must have three full days of incapacity, and have made two visits to a health care provider within 30 days from the first day of incapacity, absent extenuating circumstances. Furthermore, the first medical visit must take place within seven days of the first day of incapacity. Previously under the old regulations, the two visit requirement to a health care provider was open-ended without any parameters on the timeline of the visits, and it was unclear whether the days of incapacity could be partial days of incapacity.

"Periodic Visit"

For the first time, the new regulations provide a definition for "periodic visit." Under the definition of a "chronic serious health condition," the term "periodic visit" means visiting a health care provider at least twice a year for the same condition. This clarified definition helps to determine whether an employee has a chronic serious health condition that may lead to successive FMLA leaves of absence during years of employment.

"Health Care Provider"

Physician Assistants are added to the definition of a "health care provider."

Caring for a Pregnant Wife as Pregnancy or Birth Leave

The new regulations clarify that a husband is entitled to use pregnancy/birth FMLA leave if he is needed to care for his wife who is incapacitated due to her pregnancy provided she has a serious health condition. The new regulations summarize a husband’s right to take leave when needed to care for his pregnant spouse due to her serious health condition, but emphasize that this right is not available to a boyfriend or fiancé who is the father of the unborn child (although such a boyfriend or fiancé may be entitled to bonding leave).

Intermittent Leave

"Reasonable Effort" for Scheduling Planned Medical Treatment

The regulations now provide that employees who take intermittent leave for planned medical treatment must make a "reasonable effort," and not simply an "attempt" (as previously provided), to schedule such treatment so as not to unduly disrupt the employer’s operations. However, the DOL chose not to elaborate further in the regulations as to what constitutes a "reasonable effort". Therefore, the impact of this change may be more of a word choice rather than further clarification of what action is required of the employee.

Employee Transfer Not Allowed for Unscheduled or Unforeseeable Intermittent Leave

The regulations already allowed for an employer to transfer an employee in cases of intermittent or reduced schedule leave that is foreseeable based on planned medical treatment. Although employees may need to take intermittent leave regularly, frequently, and predictably (even if unforeseeably), the DOL expressly declined to permit transfers to an alternative position for those taking unscheduled or unforeseeable intermittent leave.

Intermittent FMLA Leave Can Be Tracked by Employer’s Method for Tracking Leave Accruals

Employers must track intermittent or reduced schedule leave using an increment no greater than the shortest period of time the employer uses to account for use of other forms of leave provided it is not greater than one hour. However, employers are not required to account for FMLA leave in increments of six minutes or even 15 minutes simply because their payroll systems are capable of doing so. In other words, although an employer’s payroll system tracks time in smaller increments than an hour, if an employer tracks leave time on an hour-by-hour basis, the employer can track FMLA leave on an hour-by-hour basis as well.

"Physical Impossibility" Exception for Intermittent Leave Increments for Employees Who Are Unable to Work a Reduced Leave Schedule

The new regulations also promulgated a new "physical impossibility" exception for those rare employees whose job duties preclude them from taking intermittent or reduced leave during their regularly scheduled shift. Examples of such employees include flight attendants who are scheduled to be on a plane flight, railroad conductors scheduled to be on a train, and laboratory employees who are unable to enter/leave a sealed laboratory during a certain period of time. This limited exception provides that, if a qualifying employee takes intermittent/reduced leave, the employer can credit the entire shift towards FMLA as it would be physically impossible for the employee to return to work mid-way through the shift. For example, if a railroad conductor normally works an eight hour shift conducting a train and needs four hours for FMLA intermittent/reduced leave on a given day, the employer can deduct a full eight hours of FMLA leave because the railroad conductor would not be able to return back to his/her shift on the train.

Intermittent/Reduced Leave Applies to Qualifying Exigency and Military Caregiver Family Military Leaves

The new regulations now clarify that employees who take FMLA leave under the new qualifying exigency and military caregiver leaves can do so on an intermittent/reduced leave basis. NDAA, passed earlier this year, which provides these leaves, was not entirely clear whether such leaves could be taken on an intermittent/reduced leave basis.

Substituting Paid Leave for FMLA Leave

Employers Can Enforce Regular Paid Leave Polices While Such Paid Leave is Used Concurrently with FMLA Leave

Employers may now apply their normal policies for taking paid leave when an employee substitutes paid leave for unpaid FMLA leave (e.g. the leaves run concurrently) regardless of the type of paid leave substituted. Prior to these new regulations, employers could only restrict the substitution of paid sick/medical leave, but not the substitution of paid vacation/personal leave. As a result, if an employer’s paid leave policy requires that the use of paid leave be taken in full day increments, this can be enforced for an employee’s use of FMLA leave, or the employee would not be allowed to use paid leave (but would still be entitled to the unpaid FMLA leave). Of course, there are both positive and negative attributes to the effect of this new regulation and employers are still free to waive their normal restrictions on use of paid leave as applied to FMLA leaves of absence.

If an employer does choose to implement restrictions on the use of paid leave during a FMLA leave of absence, the employer must notify the employee in advance of any additional requirements for the use of paid leave (e.g., the paid leave must be taken in full-day increments).

Voluntary Substitution of Paid Leave to Supplement Paid Disability/Workers’ Compensation Benefits Now Permitted

The old regulations stated that substitution of paid leave does not apply where the employee is receiving paid disability leave. The new regulations provide that, although neither the employer nor the employee can require the substitution of paid leave in such circumstances, they may voluntarily agree to supplement the disability plan benefits and/or workers’ compensation benefits with paid leave during an FMLA leave.

Use of Compensatory Time Off (CTO) for FMLA Leave Can Now Be Required [Public Sector Employers Only]

The new regulations reversed course and now allow public sector employers to require, and public sector employees to request, the use of compensatory time off (CTO) accrued by a public sector employee under the FLSA during a FMLA leave. Previously, the FMLA regulations had provided that an employer could not require the use of CTO during an employee’s FMLA leave.

Light Duty Assignments

The new regulations clarify that FMLA-qualifying employees who voluntarily accept a light duty assignment to return to work do not waive their rights to reinstatement to their original position. The employee’s time working in the voluntary light duty assignment does not count toward their FMLA entitlement. The employee’s right to restoration to their original position is held in abeyance during the voluntary light duty assignment for up to one year from the date the original FMLA leave commenced. Keep in mind that this new regulation only applies to voluntary, light duty assignments accepted by the employee and the FMLA does not require an employer to offer a light duty assignment.

Employer General Notice Requirements

Currently, covered employers are required to post a general notice of employee rights under the FMLA at all worksites, regardless of whether any employees at the worksite are FMLA eligible.

Electronic General Notice Posting Now Allowed

The new regulations provide that employers may satisfy their posting requirements through an electronic posting of the general notice as long as all employees and applicants for employment have access to the information. Consequently, if the employer posts such information on an intranet that is not accessible to applicants, additional postings accessible to applicants would be necessary.

General Notice Must Be Provided to Employees at Worksite Where At Least One Employee is FMLA Eligible

If an employer has a worksite with at least one employee who is FMLA eligible, the new regulations require that the general notice of FMLA rights be provided to each employee. If an employer does not have employee handbooks or other written materials concerning benefits and leave that are distributed to all employees, the general notice must be provided to each employee when the employee is hired.

Eligibility Notice and Notice of Rights and Responsibilities

Employers Now Have Five Business Days from the Date of Notice of a FMLA-Qualifying Reason to Notify the Employee of FMLA Eligibility

When an employer receives a request for FMLA leave or acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the current regulations require that the employer notify the employee of their eligibility to take FMLA leave within two business days. The new regulations relax this requirement. Absent extenuating circumstances, the employer now has five business days to notify the employee of the employee’s eligibility to take FMLA leave.

The FMLA Eligibility Notice must include the following information:

  • Whether the employee is eligible for FMLA leave. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible;
  • If the leave of absence is approved, that it will be considered a FMLA leave of absence;
  • Whether certification of the FMLA leave will be required;
  • Whether the employee will be required to, or have the right to, substitute paid leave during the FMLA leave;
  • The employee’s right to maintain benefits during the leave and reinstatement to return to work. This also includes the notice of any requirements to make premium payments on health benefits during the leave and the potential liability for healthcare premiums paid if the employee fails to return to work at the end of the FMLA leave; and
  • Whether the employee is a key employee whose right to reinstatement may be denied.

Notice of FMLA Rights and Responsibilities to be Provided to Employee at the Same Time as the FMLA Eligibility Notice

Employers must now provide employees with a separate "FMLA Rights and Responsibilities Notice" at the same time they provide the Eligibility Notice. The new regulations note the required elements of this notice, which generally provides details to the employee of what rights, protections, and restrictions fall under the FMLA. The DOL has provided an optional form that includes the required information for this notice.

Designation Notice Requirements

While the Eligibility Notice informs an employee of his/her potential eligibility to take a FMLA leave of absence, the separate Designation Notice confirms that an employer is designating an employee’s leave of absence as a FMLA leave of absence. For example, an employer may not be able to designate a leave of absence as a FMLA leave of absence until it receives a medical certification form confirming an employee’s serious health condition.

Timeline for Issuing the Designation Notice

Absent extenuating circumstances, an employer now has five business days from when the employer has sufficient information to make such a determination regarding the FMLA leave to give the employee the designation notice. The previous regulations required that this be done in two business days.

Information on the Designation Notice

The Designation Notice must provide the following information:

  • Note whether the leave request will be designated as a FMLA leave. If the leave is not designated FMLA leave, the notice must state the reason why the leave was not designated.
  • Indicate the number of hours, days, or weeks that are designated as FMLA leave if possible.
  • Note whether the employee will be required to substitute any paid leave time concurrently with the FMLA leave; and
  • Note any essential job functions if the employer requires that the employee provide a fitness-for-duty certification from their medical care provider before they are able to return to work.

Other Changes to the Designation Notice Requirements

To ease employers’ administrative burdens, the new regulations clarify that only one designation notice is required for each FMLA-qualifying reason per leave year, regardless of whether the leave is taken as a continuous block of leave or on an intermittent or reduced leave schedule basis.

Employers must notify employees if the information in the designation notice changes. For example, an employer must notify an employee that they have exhausted their FMLA leave entitlement and that the leave will no longer be designated as FMLA leave.

The new regulations also eliminate the "provisional designation" concept because provisionally designating leave as FMLA leave could potentially mislead people into thinking that their leave is protected prior to the actual designation, especially in cases where the leave does not eventually qualify for FMLA protection.

To encourage communication between employers and employees, the final regulations also contain a new requirement that any dispute as to whether leave qualifies as FMLA leave should be resolved through discussions between the employee and the employer. Such discussions and the decision regarding the dispute must be documented.

Employee Notice Requirements

The new regulations cleaned up a number of ambiguities related to an employee’s duty to provide notice of a need for a FMLA leave and for the consequences of an employee’s failure to provide proper notice for the need of such a leave.

Providing Notice of Need for Foreseeable FMLA Leave of Absence

For those foreseeable leaves, an employee must provide at least 30 days notice to the employer prior to the leave. If an employee does not ask for FMLA leave at least 30 days in advance of the leave, the employer may ask the employee why it was not possible to give 30 days notice of his or her need for FMLA leave. The new requirement will help employers determine whether the employee properly provided notice.

The FMLA also requires that notice must be provided "as soon as practicable" if an employee cannot give at least 30 days advance notice of his or her need for foreseeable leave. The new regulations indicate that this generally means the employee needs to provide notice either the same day or the next business day depending on the individual facts and circumstances of the situation.

The same requirements for providing notice for foreseeable leave that apply to existing FMLA leave are extended to military caregiver leave, but the 30-day advanced notice requirement does not apply to qualifying exigency leave.

Providing Notice for Unforeseeable FMLA Leave of Absence

Instead of providing notice of unforeseeable leave within two working days, the new regulations now indicate that an employee must now provide notice of his or her need for leave "as soon as practicable" and comply with the employer’s usual procedures for calling in and requesting leave, except where unusual circumstances exist.

Employee’s Need to Provide Specific Notice of Need for Additional FMLA Leave Following Previously Provided FMLA Leave

Generally, an employee who seeks leave for the first time for a FMLA-qualifying reason need not expressly assert FMLA rights or even mention the FMLA to the employer to put the employer on notice of the potential eligibility for FMLA leave.

However, an employee seeking additional FMLA leave due to a condition for which the employer has previously provided FMLA leave must specifically inform the employer of the qualifying reason for the leave or the need for FMLA leave. For example, an employee who "calls in sick" for subsequent absences related to a previous FMLA leave will not trigger FMLA protection, absent a specific request for FMLA leave. If the employee provides a specific request for additional FMLA leave, the employer can follow up and require medical certification. An employee’s failure to provide this information can result in the employer’s denial of FMLA leave.

This is a significant change in the interpretation of an employee’s ability to put an employer on notice of a need for additional FMLA leave. Employers should inform their employees on FMLA leaves of absence of the requirement to specifically request additional FMLA leave if the need arises.

Consequences for an Employee’s Failure to Provide Proper Notice

If an employee fails to comply with the notice requirements, the employer may delay FMLA coverage until the proper notice time period is reached. For example, if an employee should have provided 30 days notice and only provided 15, the employer can delay the start of the FMLA leave by 15 days. However, depending on the circumstances of the leave of absence, the delay of FMLA designation may have the unwanted consequence of extending the employee’s overall leave of absence.

Medical Certifications/Recertifications

Generally, the FMLA has allowed employers to require a medical certification from an employee’s health care provider to support the need for a FMLA leave based on a serious health condition. The new regulations help clarify a number of issues related to the certification process and an employer’s ability to seek a recertification of a serious health condition.

Timeline for Requesting/Providing Medical Certifications

To stay consistent with other revisions, the new regulations increase the time frame in which an employer should request medical certification from two to five business days after notice of the need for FMLA leave. Employers are now strongly encouraged, but not required, to provide a list of essential functions when they require a medical certification.

The general 15-day time period for an employee to provide a requested certification remains in effect and applies to all cases, including those where the employee provides notice of the need for leave 30 days in advance.

If an employee cannot meet the 15-day time frame to provide medical certification despite diligent good faith efforts, the employer must provide the employee additional time to supply the certification. In a change from the previous regulations, the employer may not immediately deny or delay FMLA coverage if there is sufficient reason for the delay.

The regulations define an "incomplete" certification as one where one or more entries has not been completed. An "insufficient" certification is where the information provided is vague, ambiguous, or nonresponsive. The procedure for curing an "incomplete" or "insufficient" certification requires an employer to notify the employee in writing as to what additional information is necessary for the medical certification and to give the employee an additional seven calendar days to provide the incomplete information.

If an employee fails to provide medical certification in a timely manner, the new regulations note that employers can "deny" FMLA leave until the medical certification is provided unless there is sufficient reason for the delay.

Procedure to Authenticate or Seek Clarification of a Medical Certification

To obtain clarification or authentication of a FMLA medical certification, the employer representative contacting the employee’s health care provider must be either a health care practitioner, a human resources professional, a leave administrator, or a management official. However, in no case may the employer representative be the employee’s direct supervisor. Previously, the FMLA only permitted an employer to have another health care provider contact the employee’s health care provider for authentication/clarification purposes with the employee’s permission. Communication between an employer representative and an employee’s HIPAA-covered health care provider for purposes of clarifying a FMLA certification must comply with the requirements of the HIPAA Privacy Rule.

The employee is not required to permit his or her health care provider to communicate with the employer, but if such contact is not permitted and the employee does not otherwise clarify an unclear certification, the employer may deny the designation of FMLA leave.

Annual Medical Certifications Can Be Required for Serious Health Conditions that Extend Beyond a Single Leave Year

Under the new regulations, an employer may now require an annual medical certification for those cases where a serious health condition extends beyond a single leave year.

Broadened Ability to Seek a Medical Recertification

The limited ability to seek a medical recertification of a serious health condition under the current regulations has been a constant source of frustration for many employers. The new regulations help provide employers with more flexibility. The general rule is that an employer can seek a recertification of a serious health condition every 30 days. However, if an employee has a medical certification with a minimum duration greater than 30 days, the employer must wait until that minimum duration expires before requesting a recertification. The new regulations modify this to allow an employer to seek a recertification of a medical condition every six months, regardless of whether this goes beyond the minimum duration noted in the certification.

This clarification allows an employer to seek recertification every six months in connection with an absence, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition). Under the previous regulations, when an employee had a long-term or lifetime condition, it was unclear if the employer could request re-certification every 30 days or never request recertification. This is one of the most significant changes to the regulations because employees will now not be able to submit lifetime certifications.

Interaction of Medical Certification for Serious Health Conditions that Also Fall Under the ADA and/or Workers’ Compensation Laws

The final regulations explicitly provide that, where an employee’s serious health condition may also be a disability for purposes of the Americans with Disabilities Act (ADA), paid disability leave, or workers’ compensation benefits, the employer may follow the ADA, paid disability leave, or workers’ compensation program procedures for requesting medical information without violating the FMLA. Employers may use this information in determining the employee’s entitlement to FMLA leave. This is a significant change from the limited medical inquiries employers were permitted to make under the previous regulations.

Fitness-for-Duty Requirements

Notice of Fitness-for-Duty Requirements

If an employer will require the employee to provide a fitness-for-duty certification to return to work at the end of his or her FMLA leave, the employer must provide a list of the essential job functions to the employee with the designation notice and notify the employee of the need to provide the fitness-for-duty certification to return to work from the leave. If the employee handbook or other written documents clearly provide that a fitness-for-duty certificate will be required, written notice is not required, but oral notice must be provided.

Special Fitness-for-Duty Requirements for Intermittent/Reduced Leave Employees

Generally, an employer cannot require a fitness-for-duty examination from employees returning from intermittent or reduced schedule FMLA leaves of absence. However, the new regulations create a narrow exception to this general rule that allows an employer to require a fitness-for-duty certification for an employee on intermittent/reduced leave up to once every 30 days if "reasonable safety concerns" exist regarding the employee’s ability to perform his or her duties. The term "reasonable safety concerns" is defined as a reasonable belief that there is a significant risk of harm to the individual employee or to others.

An Employer Generally Cannot Require that an Employee Submit to a Fitness-for-Duty Examination from the Employer’s Doctor Upon Return From a FMLA Leave

An employer may not require that an employee submit to a medical exam by the employer’s health care provider as a condition of returning to work. This change was addressed by a few cases in the past and is now part of the regulations. A medical examination at the employer’s expense by an employer’s health care provider may be required only after the employee has returned from FMLA leave and must be job-related and consistent with business necessity as required by the ADA. However, the employer cannot delay the employee’s return to work while arranging for and having the employee undergo a medical examination.

How to Count Holidays for FMLA Leave

The new regulations now clarify whether holidays should be counted against an employee’s FMLA entitlement. If an employee needs less than a full week of FMLA leave, and a holiday falls within that partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee’s FMLA leave entitlement if the employee would not otherwise have been required to report for work on that day.

Anti-Discrimination Provisions

Employers Now Allowed to Deny Perfect Attendance Bonuses to Employees Who Exercised FMLA Leave

An employer may now deny perfect attendance bonuses or similar awards to employees who take FMLA leave, provided that the employees with non-FMLA absences are treated the same way.

Retaliation Prohibited

The regulations now explicitly prohibit retaliation against an employee who asserts FMLA rights.

Waiver of FMLA Rights

The prohibition against employees waiving their FMLA rights only applies to prospective FMLA rights and does not apply to settling past FMLA claims. This new regulation resolves a split in the courts regarding whether employees could settle or release FMLA claims based on past employer conduct. This clarification will make it easier for an employer and employee to seek a waiver/release of claims to settle past FMLA claims.

Provisions Related to Family Military Related Leaves

The major change to the FMLA law took place this year with the passage in January 2008 of the NDAA, which created two new FMLA family military leaves of absence:

  • "Qualifying Exigency" Leave (up to 12 weeks); and
  • Military Caregiver" Leave (up to 26 weeks).

Because of the vagueness in the NDAA regarding these two new leaves of absence, employers have been eagerly awaiting the release of these new FMLA regulations to provide further clarification as to how to implement these new leaves.

Interaction of the New NDAA FMLA Leaves with the Current FMLA Leaves

Amount of Overall FMLA Leave Available in a 12-Month Period

An eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave, "qualifying exigency" leave, and leave for any other FMLA-qualifying reason in a "single 12-month period," provided that the employee may not take more than 12 workweeks of leave for any "qualifying exigency" or other FMLA-qualifying reason.

Here are two examples that apply this standard:

Example #1: An eligible employee who takes 26 workweeks of military caregiver leave would not be eligible to take any additional FMLA qualifying leave in the remainder of the single 12-month period.

Example #2: An eligible employee who takes 12 workweeks of leave for his serious health condition would be allowed to take an additional 14 workweeks of leave for military caregiver leave in the single 12-month period, but would not be allowed to take any "qualifying exigency" leave.

However, the "single 12-month period" for military caregiver leave begins on the first day the eligible employee takes the leave and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. In addition, an eligible employee is entitled to a combined total of 26 workweeks of military caregiver leave and leave for any other FMLA-qualifying reason in a "single 12-month period," provided that the employee may not take more than 12 workweeks of leave for any other FMLA-qualifying reason.

While the "single 12-month period" for military caregiver leave begins on the first day the employee takes the leave, an employer may establish the 12-month period for other FMLA-qualifying leave. This means that an employer may need to track an employee under two different 12-month leave periods. The regulations provide a detailed example of how employers should reconcile the use of leave to care for a covered servicemember with other FMLA leave if two different leave years are used.

Designation of NDAA FMLA Leaves

The same designation rules apply to qualifying exigency and military caregiver leave as those taken for other FMLA-qualifying reasons. Consequently, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee. Rules regarding retroactive designations also apply to military caregiver leave.

In the case of leave that qualifies as both military caregiver leave and leave to care for a family member with a serious health condition, the employer must designate such leave as military caregiver leave first.

Employee Rights Under NDAA FMLA Leaves

As with leave for other FMLA-qualifying reasons, an employee on qualifying exigency or military caregiver leave is entitled to paid health benefits as if the employee continued to work. Furthermore, an employee returning from a qualifying exigency or military caregiver leave would be entitled to the same right to reinstatement to employment as permitted for other FMLA-qualifying reasons.

Qualifying Exigency Leave Under the NDAA

The NDAA provides that eligible employees may take up to 12 weeks of FMLA leave for any qualifying exigency due to a spouse, son, daughter or parent of the employee being on active duty or being notified of an impending call to active duty status in support of a contingency operation. Qualifying exigency leave is available to employees who have a spouse, son, daughter or parent called to active duty as part of the Reserve components or the National Guard, or a retired member of the Regular Armed Forces or Reserve. An employee whose family member is a member of the Regular Armed Forces is not entitled to qualifying exigency leave.

The final regulations set forth the seven general categories of qualifying exigencies:

1. Short-Notice Deployment: To address any issue that arises due to a covered military member being notified of an impending call or order to active duty seven or less calendar days prior to the date of deployment.

2. Military Events and Related Activities: To attend any official ceremony, program or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations or the American Red Cross that are related to the active duty or call to active duty status of a covered military member

3. Childcare and School Activities: To arrange childcare or attend certain school activities for a child of the covered military member who is either under age 18, or age 18 or older and incapable of self-care. This leave may be taken to arrange for alternative childcare, to provide urgent, immediate, non-routine childcare, to enroll the child in a new school or day care facility or to attend meetings with staff at a school or a day care facility (e.g. disciplinary meetings, parent-teacher conferences, meetings, with school counselors).

4. Financial and Legal Arrangements: To make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System, obtaining military identification cards or preparing or updating a will or living trust. The leave can also be used for acting as the military member’s representative for purposes of obtaining, arranging or appealing military service benefits while the covered military member is on active duty or call to active duty status, and for the 90 days after the termination of the covered military member’s active duty status.

5. Counseling: To attend counseling provided by someone other than a healthcare provider for oneself, for the covered military member or for the child of the covered military member who is either under the age of 18 or age 18 or older and incapable of self-care, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

6. Rest and Recuperation: To spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may only take up to five days of leave for each instance of rest and recuperation. [NOTE - This may run concurrently with California’s Military Spousal Leave Law, Military & Veterans Code section 395.10, which provides up to 10 days of leave under similar circumstances for spouses of soldiers]

7. Post-Deployment Activities: To attend arrival ceremonies, reintegration briefings and events and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

8. Additional Activities: To address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

If an employee requests leave for a qualifying exigency, the employee must provide sufficient information that indicates that a family member is on active duty or call to active duty status, that the requested leave is for one of the qualifying exigencies listed in the regulations, and the anticipated duration of the absence.

Military Caregiver Leave Under the NDAA

Who Is Entitled to Take Military Caregiver Leave

The NDAA amended the FMLA to allow an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember to take 26 workweeks of leave during a single 12-month period to care for the servicemember.

An eligible employee may take FMLA leave to care for a covered servicemember with a serious injury or illness incurred in the line of duty on active duty with the servicemember falling into one of the following categories:

  • Undergoing medical treatment, recuperation, or therapy; or
  • Otherwise in outpatient status; or
  • Otherwise on the temporary disability retired list.

The term "covered servicemember" includes current members of the Regular Armed Forces, current members of the National Guard or Reserves, and members of the Regular Armed Forces, the National Guard and the Reserves who are on the temporary disability retired list. Former members of the Regular Armed Forces, former members of the National Guard and Reserves, and members on the permanent disability retired list are not considered covered servicemembers.

For purposes of military caregiver leave, a "son or daughter of a covered servicemember" is the covered servicemember’s biological, adopted or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age. This definition does not apply to leave taken for other FMLA-qualifying reasons.

A servicemember’s "next of kin" is the servicemember’s nearest blood relative, other than the covered servicemember’s spouse, parent, son or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins. Also, the covered servicemember can specifically designate in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under FMLA, in which case the designated individual shall be considered the covered servicemember’s next of kin.

When an employer wants proof of an individual’s status as a covered servicemember’s next of kin, the employee must provide reasonable documentation of the familial relationship. If the servicemember has not designated a next of kin, a simple statement from the employee outlining the employee’s familial relationship to the servicemember will suffice.

Certification of Serious Injury or Illness for Military Caregiver Leave

When leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his or her request for leave with a sufficient certification from one of the specified, authorized health care providers. The certification may include:

  • Whether the servicemember has incurred as serious injury or illness;
  • Whether the injury or illness may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank or rating;
  • Whether the injury or illness was incurred by the member in line of duty on active duty; and
  • Whether the servicemember is undergoing medical treatment, recuperation or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list.

The certification should also include information about the need for leave that is also required of individuals requesting FMLA leave to care of a family member with a serious health condition:

  • The probable duration of the injury or illness;
  • Frequency and duration of leave required;
  • If leave is requested on an intermittent or reduced schedule basis, an estimate of the frequency and duration of such leave; and
  • The family relationship of the eligible employee to the covered servicemember.

The DOL has provided an optional form employers can provide to employees to obtain the proper certification for a military caregiver leave of absence.

Circumstances Under Which Military Caregiver Leave May Be Taken

The 26-workweek entitlement is a one-time entitlement applied on a per-servicemember, per-injury basis, meaning that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a "single 12-month period."

Unlike FMLA leave for other qualifying reasons, military caregiver leave is not a yearly entitlement that renews each year. Thus, if an eligible employee is caring for a covered servicemember whose serious injury or illness extends beyond the employee’s 26-workweeks leave entitlement, the employee is not eligible for an additional 26-workweek entitlement to continue to care for the covered servicemember in the next year defined by the employer. However, even after an employee has exhausted his or her military caregiver leave entitlement, the employee may be entitled to use his or her normal 12-week FMLA leave entitlement to provide care to the servicemember so long as the condition qualifies as a serious health condition and the employee meets all other requirements.

Special Provisions for School Employees Seeking Military Caregiver Leave

Currently, when an instructional employee requests FMLA leave intermittently or on a reduced leave schedule for foreseeable planned medical treatment of a covered servicemember and who, as a result, will be on leave for greater than 20 percent of the total number of working days during the period of leave, the employee must choose to either (1) take leave for a period or periods of particular duration; or (2) transfer temporarily to an available alternative position with equivalent pay and benefits that better accommodates recurring periods of leave. The final regulations extend these limitations on school employees to military caretaker leave, but not to qualified exigency leave.

Under the current regulations, if an instructional employee begins leave for a purpose other than the employee’s own serious health condition during the five-week period before the end of the term, the employer may require the employee to continue taking leave until the end of the term if the leave will last more than two weeks and the employee would return to work during the two-week period before the end of the term. Similarly, an employer may require an instructional employee to continue taking leave until the end of the term if the employee begins leave that will last more than five working days for a purpose other than the employee’s own serious health condition during the three-week period before the end of the term. The final regulations extend the limitations to leave taken to care for a covered servicemember, but not leave taken because of a qualifying exigency.

New and Revised Sample FMLA Documents

The final regulations include seven new and revised sample documents that can be used by employers to comply with the FMLA’s notice and certification requirements:

  • WH-380E: New Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380F: New Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH Publication 1420: Notice to Employee of Rights Under FMLA
  • WH-381: Notice of Eligibility and Rights and Responsibilities
  • WH-382: Designation Notice
  • WH-384: Certification of Qualifying Exigency for Military Family Leave
  • WH-385: Certification of Serious Injury or Illness of Covered Servicemember for Military Family Leave

Interaction with the California Family Rights Act (CFRA)?

There is, however, one strange twist on these new FMLA regulations. Remember that provisions of the California Family Rights Act (CFRA) - California’s family and medical leave law - are not necessarily changed by these regulations. Below is a summary of some potential conflicts between these new FMLA regulations and CFRA.

Interaction of New NDAA FMLA Family Military Leaves with CFRA?

While the federal NDAA did amend the FMLA to add additional family leave rights to include qualifying exigency and military caregiver leaves, these amendments have no effect on any state family and medical leave law counterparts, including California’s CFRA. There is a possibility that an employee’s use of FMLA leave for these new family military leave purposes may not run concurrently with CFRA leave - similar to the deviation between the FMLA and CFRA in their application to pregnancy disability leave.

As a result, employees may be eligible for an additional 12 weeks of unpaid leave time under the CFRA during an established 12-month period even though the employee exhausted all unpaid leave for qualified exigency and/or military caregiver leaves under the FMLA.

Will California Incorporate the New FMLA Regulations to Interpret the CFRA?

The other concern is whether California will recognize these new FMLA regulations to the extent that they do not conflict with the other provisions of CFRA (e.g. its application to pregnancy disability leave). At the present time, California’s CFRA regulations expressly provide that, unless inconsistent with other laws, the FMLA regulations are incorporated by reference to interpret the CFRA. As a result, provisions of the CFRA which provide greater rights to employees must still be followed.

However this reference in the CFRA regulations is specifically tied to the current FMLA regulations that were implemented back in 1995:

"To the extent that they are not inconsistent with this subchapter, other state law or the California Constitution, the Commission incorporates by reference the federal regulations interpreting FMLA issued January 6, 1995 (29 CFR Part 825), which govern any FMLA leave which is also a leave under this subchapter." - 2 C.C.R. § 7297.10.

Therefore, to the extent that an employee’s FMLA leave would run concurrently with the CFRA, an argument could be made that an employer would need to follow the old FMLA regulations in providing the leave of absence to the extent that they provide greater rights to employees and are not pre-empted by the new FMLA regulations.

It is hopeful that clarification will be forthcoming to address this issue either from the California legislature through an amendment to the CFRA or from the Fair Employment and Housing Commission (FEHC) in the form of a regulation or legal interpretation. However, at this time there is no clarification on this potential conflict.

Conclusion

In light of the impact of these new FMLA regulations, covered employers will need to update their FMLA/CFRA policies and practices. Employers with any questions regarding how to implement the new FMLA regulations should contact any one of LCW’s offices.

This article was written by Gage C. Dungy and Connie Chuang, attorneys with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Mr. Dungy (gdungy@lcwlegal.com) is an Associate in the Fresno office and can be reached at (559) 256-7800. Ms. Chuang (cchuang@lcwlegal.com) is an Associate in the Los Angeles office and can be reached at (310) 981-2000. For more information regarding the discussion above or on our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.

Liebert Cassidy Whitmore publishes this article as a service to our clients and other friends for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions and the transmission of this information is not intended to create an attorney-client relationship between sender and receiver. You should not act upon this information without seeking professional counsel.

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