Department of Labor Issues Long-Awaited Rules

The Labor Department issued 750 pages of final revised regulations for the Family and Medical Leave Act on Nov. 14, marking the first major regulatory update of the 1993 law in more than 13 years.

The new rules will take effect 60 days after publication in the Nov. 17 Federal Register (73 Fed. Reg. 67,934). In addition to addressing certain interpretive issues that have arisen over the years, the regulations implement statutory amendments signed into law by President Bush in January allowing family members of wounded military personnel to take up to six months of unpaid leave to care for them during their rehabilitation process.

Assistant Secretary of Labor Victoria A. Lipnic told BNA Nov. 13 that the final rules “will improve communications between employees, employers, and health care providers to make the law operate more smoothly, and provide needed clarity for both workers and employers about their responsibilities and rights” under the FMLA.

Lipnic said the final rules have been in the works since shortly after her nomination in March 2002. She said the process involved numerous meetings seeking input from employer and employee “stakeholders” and included the unusual step of making a request for information from the public before issuing proposed regulations this past February and seeking public comments on them. Lipnic said she personally reviewed about 20,000 comments during the process.

FMLA Amendment Added Military Family Leave

The Defense Department authorization bill for fiscal year 2008 included provisions amending the FMLA to provide two new leave entitlements—military caregiver leave and qualifying exigency leave.

Eligible employees who are family members of covered service members will be able to take up to six months (26 workweeks) of leave in a single 12-month period to care for a servicemember with a serious illness or injury that was incurred in the line of duty during active duty. The 12-month period begins when the employee starts using military caregiver leave. Employers will not have the option of using the calendar-year method as they do for other types of FMLA leave, Lipnic said. She explained that entitlement to 26 weeks of military caregiver leave is provided for each service member and for each illness or injury incurred and covers more extended family members than are covered by FMLA leave for other reasons.

Qualifying exigency leave is intended to help families manage the affairs of National Guard and Reserves members while they are on active duty or called to active duty status in support of a contingency operation. Family members may use all or part of the regular allotment of 12 weeks of FMLA leave. The final rules define “any qualifying exigency” to include a number of broad categories of reasons and activities, including short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any additional activities agreed to by the employer and the employee.

The regulations also address the definition of a “serious health condition.” One of the six definitions of a serious health condition is three consecutive days of incapacity plus two visits to a health care provider. The final rules state that the two visits must occur within 30 days of the start of the period of incapacity and that the first visit must occur within seven days of the start of incapacity.

The employee must obtain a medical certification regarding a serious health condition. The final rules allow the employer to contact the employee’s health care provider to obtain information required by the certification form, but specify that the employer’s representative doing the contacting must be a health care provider, a human resources professional, a leave administrator, or a management official. Because of privacy concerns, the rules forbid the direct supervisor of the employee from contacting the employee’s health care provider.

If the employer views a medical certification form as incomplete or insufficient, the new regulations require the company to notify the employee in writing, specify what information is lacking, and give the employee seven calendar days to provide the additional information.

The final rules codify a 2005 opinion letter from DOL’s Wage and Hour Division stating that employers may require employees to provide a new medical certification every 12-month FMLA period for medical conditions that last longer than one year (56 BTM 340, 10/25/05). But the new rules also allow an employer to request recertification of an ongoing condition every six months in conjunction with an absence.

Employer Notice Requirements according to a copy of the final regulations obtained by BNA, the new rules consolidate in one section all the particular types of notice employers must provide their employees, as well as reconciling certain conflicts and time limits in the provisions.
The regulations require employers to provide employees with a general notice about the FMLA, an eligibility notice, a notice of rights and responsibilities, and a designation notice. The time period for the employer to provide various notices has been extended from two to five business days.

Under the previous regulations, employees had up to two business days after an absence to notify the employer of the need for FMLA leave. However, the new rules require employees to comply with an employer’s usual procedures for reporting an absence, unless unusual circumstances prevent this.

The FMLA allows employees to use accrued paid leave as a substitute for unpaid FMLA leave, and it allows employers to require employees to exhaust paid leave before taking unpaid leave. The old regulations treated the use of vacation or personal leave differently than sick leave, but the new rules treat all forms of paid leave the same. However, an employee seeking to substitute paid leave must comply with the employer’s uniform policy for use of such leave, such as providing a minimum amount of advance notice, unless the employer chooses to waive procedural requirements.

In response to the U.S. Supreme Court’s 2002 decision in Ragsdale v. Wolverine World Wide Inc. (535 U.S. 81, 7 WH Cases 2d 1153 (2002)) and other court decisions invalidating categorical penalty provisions in the old FMLA regulations, the new rules remove those provisions and instead state that the employer may be liable when its failure to follow the notification rules causes individualized harm to the employee.

The final regulations codify DOL’s longstanding position that employees may settle or release FMLA claims without obtaining court or agency approval, in contrast to a recent federal appeals court decision, but that prospective waivers of FMLA rights are prohibited, according to DOL.

In contrast with some court decisions, the rules provide that time spent working a light-duty assignment does not count toward an employee’s FMLA leave allotment and that the employee’s right to job restoration is held in abeyance while the employee is performing light duty or until the end of the applicable 12-month period.

Under current rules, employers are permitted to apply uniform policies requiring employees who take medical leave to submit a fitness-for-duty certification in order to return to work. The new regulations also will permit employers to require that the certification specifically address the employee’s ability to perform the essential functions of the specific job. If reasonable job safety concerns exist, according to the regulations, the employer may require a fitness-for-duty certification before an employee returns to work after taking intermittent leave.
By Susan J. McGolrick

The final rules can be accessed at http://edocket.access.gpo.gov/2008/E8-26577.htm.

— Life, Heal