On November 17, 2008, the U.S. Department of Labor (DOL) issued a final rule to update the Family and Medical Leave Act (FMLA) regulations. The text of the final FMLA rule with explanatory comment is available at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf and runs approximately 200 pages single spaced. More information on this topic will be provided at Armstrong Teasdale’s Employment and Labor Law Seminar, the date of which will be announced shortly.
The rule marks the first significant overhaul of FMLA regulations in over 15 years. Additionally, the regulations provide guidance on implementation of the new military leave benefit that was enacted as part of the 2008 National Defense Authorization Act earlier this year. The Act provides America’s military families with special job protected leave rights to care for service men and women who are wounded or injured, and also helps families of members of the National Guard and Army Reserves manage their affairs when a member of their family is called up for active duty.
NEW BENEFITS FOR SOME MILITARY FAMILIES
- The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.
- “Next of kin,” which can include grandparents, aunts, uncles, first cousins and any relative so designated by the service member -- not just spouses, parents and children -- are eligible to take this leave.
- The 26 weeks can be taken over a 12-month period, with the clock starting to run on the first day of the leave.
- This military caregiver leave may be taken only once per injury, but more than one family member may qualify for it, and each relative may take leave again if there are other injuries. The leave; however, is available only while the service member remains in the military. DOL has also developed a new form to be used when an employee needs leave due to a serious injury or illness of a covered service member.
- The other new military family leave benefit allows relatives of those called to active duty in the National Guard and Reserves -- but not regular active-duty military members -- to take up to 12 weeks of leave for several qualifying “exigencies.” A variety of deployment-related reasons would be covered, including: (1) short-notice deployment, (2) military events and related activities, (3) child-care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities and (8) additional activities.
- DOL has also issued a form to be used to certify a Qualifying Exigency for Military family members.
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EXAMPLES OF OTHER CHANGES
The changes to the FMLA regulations are far too numerous to be covered in this alert; however, examples of some of the changes are listed below:
Employee Notice – The new regulations require employees to follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances. Currently, employees have up to two days after a business absence to notify the company about their need for leave.
Chronic Condition – To have a “chronic condition” that qualifies for FMLA leave, employees for the first time will have to certify that they visited a doctor at least twice a year for the condition.
Medical Certification Process – The final rule recognizes the applicability of the Health Insurance Portability and Accountability Act privacy rule to communication between employers and employees’ health care providers. The new rule specifically allows HR professionals to contact an employee’s health care provider for the sole purpose of authenticating or clarifying a medical certification. However, in a departure from the proposed regulations, one new provision prohibits direct supervisors from contacting the employee’s health care provider.
Substitution of Paid Leave – The regulations contain more detailed guidance on the substitution of paid leave for FMLA leave.
EMPLOYER NOTICE REQUIREMENTS
- The final rule extends the time for employers to provide various notices under the Act from two business days to five business days.
- The new regulations impose new duties on employers to notify their employees of the FMLA’s requirements and include a new general notice that must be posted and included in an employee handbook or in other written guidance to employees concerning employee benefits or leave rights, or distributed to a new employee upon hire. Thus, most employers will need to revise their employee handbook or distribute a copy of the new notice to their employees.
- New medical certification forms are now required including separate forms for the employee’s own serious health condition and the employee’s family member’s serious health condition. Also, there is a new form an employer should use to notify employees of their eligibility for FMLA leave and their rights and responsibilities under FMLA, and a new form of prototype notice that an employer is to use to designate FMLA leave.
- The final rule is effective January 16, 2009. Every employer subject to FMLA should revise its policies and practices to come into compliance with these new regulations by that date.
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