Jackson Lewis - Much Anticipated Proposed Revisions to FMLA Regulations Released

Much Anticipated Proposed Revisions to FMLA Regulations Released

Sections
Coverage Issues
Employee Leave Entitlements
Employer Notice Obligations
Employee Notice Obligations
Medical Certification Forms and Processes
Military Family Leave Provisions

The Department of Labor has released long-awaited proposed revisions to the Family and Medical Leave Act regulations. If adopted, the changes would alter significantly many current FMLA procedures. The proposed regulations were prompted in part by continued tension between employers and employees concerning intermittent leave and the Supreme Court's 2002 Ragsdale v. Wolverine Worldwide Inc. ruling, which invalidated a DOL regulation that penalized employers for failure to comply with the technical employee notice provisions of the FMLA regulations.

Employers and employees now have 60 days, until April 11, 2008, to consider and comment on the proposed changes. The proposed regulations were accompanied by a mammoth report explaining the reasoning and intent of the changes. They also clarify and/or seek comment on provisions of the recently enacted FMLA Amendments granting leave to military families. (See related article "FMLA Amendments Extend Leave to Families of Servicemembers".)

Among the many issues the proposed regulations addressed are the following:

Coverage Issues [top]

Some Professional Employer Organizations (PEO's) Not Considered Joint Employers

Recognizing that PEOs in general provide a service to employers by handling payroll functions rather than directly or jointly directing the work of their client's employees, the Proposed Regulations clarify the test under which PEOs will be assessed to determine if they are joint employers. A PEO which merely handles administrative functions, such as payroll, benefits administration, regulatory paperwork and the like, will not be viewed as joint employers with their clients. Those PEOs whose responsibility are more involved, such as participating in hiring and firing, assigning or directly controlling employees, will be viewed as joint employers.

Count Employee Prior Service in Determining Eligibility for Leave

The DOL proposes that employers count an employee's prior service with the company toward the 12 months needed to earn FMLA eligibility if a break in service does not exceed 5 years. The DOL recognized that the FMLA requires employers to maintain records for only 3 years and some employers might not have records going back 5 years to assess the eligibility of rehired employees. The Proposed Regulations place the burden upon a rehired employee asserting FMLA rights to put forth some evidence of the prior employment if that employment is more than 3 years prior to rehire and the employer does not have records of the employee's employment dating back further than the 3 years required by the FMLA.

The Proposed Regulations carve out two exceptions to the new 5 year rule: (1) breaks in service resulting from an employee's fulfilling military obligations and (2) breaks pursuant to an approved leave of absence, such as education or child rearing or as called for under a collective bargaining agreement.

Employees May Continue to "Grow" Into FMLA Leave

The Proposed Regulations affirm that employees are entitled to 12 weeks of leave upon reaching 12 months of service. Many employers allow employees to take family or medical leave even if they fall short of the 12 months of service needed for FMLA protection. Employers who extend such leave to ineligible employees have sought to count the time on leave as part of the 12 weeks of leave required under FMLA if the employees reached their 12 months of service while on leave. The DOL has rejected this effort and affirms that in such cases, the individual employee would be entitled to their full complement of FMLA leave (12 weeks) upon becoming FMLA-eligible. This will result in some employees with less than 12 months of service receiving more leave than employees who are FMLA-eligible at the time they begin leave.

Location of Worksite Determined for Long-Term "Joint Employees"

Adopting a 1994 decision of the 10th Circuit Court of Appeals, the DOL proposes individuals who are jointly employed and working at a location for 12 months or longer will be considered to be employed at the worksite where they physically report to work. The DOL has struggled with determining the worksite of some individuals who have been jointly employed at a worksite for long periods. The worksite location is important for determining whether an employer employs more than "50 employees within 75 miles" of an employee's worksite. Such an employer must provide FMLA to those employees. This issue addresses concerns of many "joint employers" (such as temporary employment agencies) who place individuals at small businesses that otherwise would not have obligations under the FMLA.

Common Ailments May be Serious Health Conditions

The Proposed Regulations clarify that common ailments can qualify for FMLA protection if they otherwise meet the definition of "serious health condition." Current DOL regulations suggest common ailments, such as the common cold, the flu, earaches, upset stomach, minor ulcer, and headaches, would not normally be considered serious health conditions covered by the FMLA.

Male Employees Protected When Attending Prenatal Appointments With Spouses

The Proposed Regulations clarify that pregnant employees and their spouses may take FMLA leave to attend prenatal care appointments without regard to their ability to work. Male employees also may take FMLA leave if their pregnant spouses have severe morning sickness and are in need of their assistance for physical or psychological care.

Chronic Conditions Requiring "Self-Treatment" Remain Covered

The DOL rejected employer pleas that employees with chronic serious health condition provide doctor's notes confirming the medical need for absences. The DOL reasoned that such a requirement could adversely affect the health of employees. For example, a severe asthma sufferer who may be better served on high-pollen-count days to stay inside and take prescribed medication rather than see a doctor to obtain a note. The DOL proposed one slight modification – that employees with chronic serious health conditions requiring "periodic" medical treatment visit their doctor at least twice per year.

Physician Assistants Qualify as Health Care Providers

The DOL proposes to remove the requirement that physician assistants be able to "operate without supervision by a doctor or other health care provider" in order to be "health care providers" under the FMLA.

Employee Leave Entitlements [top]

Count Holidays When FMLA is Taken in Full-Week Increments

The DOL reaffirmed that employees on leave for an entire week are charged with an entire week of FMLA leave, even if the employer is closed for a holiday during that week. Employers must use a different calculation, however, when employees use leave in increments of less than a fullweek. Under those circumstances, the holiday will not count against the employee's FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.

Employees Seeking Intermittent Leave Must Make "Reasonable Efforts" Not to Disrupt Unduly the Employer's Operations

The DOL proposes that employees "make a reasonable effort" when scheduling leaves to avoid disruption of the employer's operations. The FMLA has always included an obligation on the employee to schedule intermittent and reduced schedule leaves that are foreseeable in a manner that does not unduly disrupt the employer's operations. Many employers viewed this obligation to be of little value as employees only had to make an "attempt." While an employee's obligation appears only nominally increased in the Proposed Regulations, employers may find this of use if employees fail to make reasonable efforts.

No Change to Minimum Increment of Intermittent Leave Rule

Despite numerous comments expressing concerns about the administrative burden of tracking leaves in short increments, the DOL proposes not to increase the minimum increment of intermittent leave at this time. Many employers sought changes to provide for leave increments in larger blocks of hours, or half-days. The DOL states that no issue received more substantive commentary than employee use of unscheduled intermittent leave. Nevertheless, the DOL recognized the importance of such leave to employees with serious health conditions and declined to change existing rules requiring employers to track intermittent leave in the shortest period of time that their payroll systems use to account for absences or the use of leave, provided it is one hour or less.

Inability to Work Overtime Protected by FMLA

The DOL clarifies that missed overtime must be counted against the employee's FMLA leave entitlement if the employee would otherwise be required to report for duty but for the taking of FMLA leave. For example, if an employee has a serious health condition limiting the employee's work hours to 40 per week though he is scheduled for 48 hours in a week, the employee would be charged 8 hours, or 1/6th of a week, of FMLA leave.

Numerous Aspects of "Substitution Rules" Clarified

The DOL acknowledges confusion exists concerning the rules for substituting paid leave for unpaid FMLA leave and clarifies an employer's obligation to allow the substitution of paid sick or medical leave.

Employers may run paid leave concurrently with unpaid FMLA
The terms and conditions of an employer's paid leave policies clearly apply and must be followed by employees when any form of accrued paid leave, including paid vacation, personal leave, family leave, paid time off (PTO), or sick leave, is substituted for unpaid FMLA leave. The proposed regulations also clarify that the term "substitution," in the context of the FMLA, means that unpaid FMLA leave runs concurrently with employer-provided paid leave.
Employers must notify employees of paid leave requirements at time of leave
When providing notice of eligibility for FMLA leave to employees, employers also must notify employees of any additional requirements for the use of paid leave. Employers also must inform employees that they remain entitled to unpaid FMLA leave even if they choose not to meet the terms and conditions of the employer's paid leave policies (such as using leave only in full day increments or completing a specific leave request form).
Employers and employees may mutually agree to supplement disability benefits through use of paid leave
Even though the substitution of paid leave for unpaid leave are not applicable when employees receive disability benefits during FMLA leave, the employer and employee may agree to run paid leave concurrently with FMLA leave to supplement disability benefits. Therefore, if employees only receive two-thirds of their regular salary from disability plans, by mutual agreement, employees can use paid leave to make up the difference.
Employers need not accept less than the FMLA required certifications even when paid leave is substituted
Under current FMLA regulations, when an employer's procedural requirements for taking paid leave are less stringent than the requirements of the FMLA, employees cannot be required to comply with higher FMLA standards. The DOL proposes to eliminate this provision. Employers may require sufficient FMLA certification in support of any request for FMLA leave for either the employee's own or a covered family member's serious health condition. Employers may require employees to provide 30 days' notice for foreseeable leave whenever possible for the birth or placement of a child or for planned medical treatment. These requirements must be met for the employee to gain FMLA protections regardless of whether the employee is using the employer's paid leave.
Employees may continue to decline offers of light duty
Employers may continue to run an employee's 12-week FMLA leave entitlement concurrently with a workers' compensation absence. Additionally, employees may continue to decline an employer's offer of light duty within the employee's medical restrictions and instead elect to remain out on FMLA-protected leave. The employee may do so only if he or she is unable to return to the same or an equivalent position and he or she may lose workers' compensation benefit payments as a result.

Public Employers May Substitute Compensatory Time for Unpaid FMLA time

The Proposed Regulations allow public employers to require employees to use accrued compensatory time when leave is taken for an FMLA-qualifying reason.

Employers May Consider Attendance Goals in Determining Bonuses and Other Incentive Rewards

Current regulations require employers to pay perfect attendance bonuses to employees who have missed time from work for FMLA-covered reasons. Employers would now be permitted under the Proposed Regulations to disqualify an employee from a bonus or award predicated on the achievement of a goal where the employee fails to achieve that goal as a result of an FMLA absence. The specified goals may include hours worked, products sold or perfect attendance, and the bonus or award may be denied if the employee has not met the goal due to FMLA leave. While this may appear to be a major shift in the DOL's position, employers ought not to disqualify individuals on FMLA-qualified leave while allowing employees on non-FMLA leaves (such as paid vacation) to receive such awards.

Employers May be Liable for Actual Monetary Losses and other Equitable Relief For Harm Caused by Interference with FMLA Rights

Responding to comments for stronger or clearer regulatory provisions prohibiting FMLA interference and discrimination, the DOL proposes language setting forth the remedy for interfering with an employee's rights under the FMLA. Specifically, employers may be liable "for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered."

Time Spent Performing Light Duty Does Not Count Towards FMLA Entitlement

Under the current regulations, job restoration rights are available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of light duty. The proposed change would eliminate this provision and clarify that an employee's right to FMLA leave and job restoration are not affected by light duty assignments. The DOL declined various requests to require employees to accept light duty work in lieu of taking FMLA leave.

Employees May Voluntarily Agree to Settle Past FMLA Claims Without First Obtaining Approval from the DOL or a Court

The DOL clarifies current regulations, which state that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA," by adding an explicit provision that employees and employers are permitted to voluntarily settle past claims without first obtaining permission or approval from the DOL or a court.

Employer Notice Obligations [top]

One consistent concern expressed by employee representatives during the DOL's 2007 "stakeholder meetings" was that employees need to be better aware of their FMLA rights. The Proposed Regulations generally retain all of the employer notice requirements of the current regulations while clarifying, reorganizing and augmenting them. Employer notice requirements have increased at virtually every stage of the FMLA process.

The Proposed Regulations organize employer notice obligations into four categories: (1) general notice, (2) eligibility notice, (3) designation notice, and (4) notice of consequences (to the employee) of failing to provide notice of the need for leave. The individual notice requirements under Section 825.301(b) of the current regulations have been separated into two new notice requirements or phases: "eligibility" notice and "designation" notice. In accordance with these changes, the current optional Form WH-381 ("Employer Response to Employee Request for FMLA Leave") will be replaced with two optional forms, one to advise employees of their FMLA eligibility and the other to formally "designate" leave as FMLA leave.

Employer General Notice Obligations Expanded and Modified

Employers must continue to post a notice providing general information about the FMLA. However, this posting requirement may be satisfied through an electronic posting, as long as the posting is accessible to applicants as well as employees and satisfies all of the other general notice requirements. Electronic-only posting will be permitted only where all employees have access to company computers. Although the current regulations provide that covered employers must post the general notice even when they have no FMLA-eligible employees, the proposed revisions state this more clearly.

In addition to the general posting requirements described above, covered employers with eligible employees also must distribute to each employee, at least annually, the same general notice that they post in their workplace. This annual notice requirement may be satisfied by including the notice in an employee handbook or by distributing the notice annually to each employee in paper or electronic form. This is a change from the current regulations, which require that an employer include an FMLA policy in its handbook if it has one; if not, the employer must provide written guidance concerning FMLA rights and obligations when an employee gives specific notice of the need for leave. When a significant portion of the employer's workforce is not English-literate, it must provide the notice in a language in which its employees are literate. Covered employers that have no eligible employees need not distribute the annual notice but must still fulfill the posting requirement.

The DOL has included a Prototype Notice as Appendix C to the Proposed Regulations. This notice contains much of the same information as the existing DOL poster but with additional detail regarding employee rights and responsibilities.

Employers Must Provide Employees with Specific Written Notice of their "Eligibility" for FMLA

Employers continue to be responsible for communicating eligibility status to employees. However, the Proposed Regulations separate the employer's current notice obligation into two types of notices. First, employers must provide "eligibility notice" to an employee within five business days (three business days more than under the current rules) after the employee either requests leave or the employer acquires knowledge that the employee's leave may be for an FMLA-qualifying reason. Second, employers also must notify the employee whether leave is still available in the applicable 12-month period and, if the employee is not eligible or has no FMLA leave available, the notice must indicate the reason(s) why. For example, an employer might indicate that an employee has not worked long enough to meet the 12-month eligibility requirement, or that the employee already has used his/her 12-week FMLA entitlement during the relevant twelve months.

If employees are eligible for FMLA leave, the eligibility notice must then inform them of any requirement to provide medical certification, how to pay premiums for continuing benefits, and job restoration rights upon expiration of FMLA leave. In addition, when employers notify eligible employees of their right to substitute employer-provided paid leave, they also must inform the employees that they may take unpaid FMLA leave if they do not comply with the terms and conditions of the employers' paid leave policies. The eligibility notice also must include a statement of the employee's essential job functions if the employer will require that information be addressed in fitness-for-duty certifications.

If an employer requires medical certification or a fitness-for-duty report, written notice of that requirement must be given to each employee seeking or is in need of leave, unless the employer communicates in writing to all employees that such information always will be required. Even in the case of this "blanket" written notice, oral notice still must be given to each employee requiring leave.

Attached as Exhibit D to the Proposed Regulations is a new Eligibility Notice form that would replace the current Form WH-381.

In addition to the above, the new form requires employers to identify the amount of leave requested and whether the request is for a single period or for intermittent leave. Where employees are FMLA-eligible, the form requires employers to indicate any additional information the employee must provide (such as medical certification or documentation of family relationship) and must identify the employee's rights and responsibilities in a manner similar to that already included on Form WH-381. The "eligibility notice" should be accompanied by the FMLA medical certification form if the employer requires that it be completed.

Employers Must Provide Employees with Specific Written Notice that Time On Leave Will Be "Designated" as FMLA Qualifying

Once an employer has obtained sufficient information to determine whether an employee's leave will be protected by the FMLA, the employer must notify the employee within five business days (a change from the current requirement of two business days) that the leave is designated as FMLA leave.

Employers must inform employees of the specific number of hours, days or weeks, if possible, that will be designated as FMLA leave. When the exact amount of leave needed by the employee initially is unknown (for example, unforeseeable intermittent leave for a chronic serious health condition), the employer must inform the employee every 30 days of the amount of FMLA leave that has been designated and used during the preceding 30-day period. No particular format is required for this information, and, consistent with current rules, it can be communicated on a pay stub.

Employers also must notify employees if some period of leave taken is not designated as FMLA leave due to insufficient information or a non-qualifying reason.

Attached as Appendix E to the Proposed Regulations is a new optional "Designation Notice" that can be used to satisfy these requirements. Consistent with the above requirements, the "designation notice" focuses on the specific amount of leave the employer is designating or will, in the future, be designating as FMLA leave. Form WH-381 will be discontinued if the regulations are adopted as proposed.

Because the proposed regulatory scheme separates the "eligibility notice" requirement from the "designation notice" requirement, which currently are addressed in Form WH-381, employers will no longer need to provide a "provisional" designation as is the case under the current regulations. Instead, once the "eligibility notice" has been provided, employers may delay actual designation until five business days after they receive medical certifications and any other required information. Of course, employers may provide the "eligibility" and "designation" notices at the same time, if they have sufficient information to do so.

Employers' Ability to Retroactively Designate FMLA Leave Clarified

The regulations also contain proposals to implement the Supreme Court's decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81(2002). Because Ragsdale requires a remedy for notice violations tailored to individualized harm, the DOL takes the view that an employer's failure to comply with the revised notice requirements could support a claim for interference with, restraint of, or denial of the use of FMLA leave. Therefore, if employees are able to demonstrate harm as a result of their employer's failure to provide them with the required eligibility and designation notices, employers may be liable for damages or equitable relief as a result of the violation, including lost compensation and benefits, other monetary losses, and re-employment, reinstatement, or promotion.

The DOL acknowledges that in many cases where employees are on leave due to their own serious health conditions, it may be difficult to show harm as a result of the employer's failure to timely designate FMLA leave. If, however, employees know they will need FMLA leave later in the year for planned medical treatment, adoption or childbirth, they may be able to show harm by establishing that they would have chosen a different leave schedule or had another family member provide care.

In all cases where leaves are FMLA-qualifying, employees and employers may mutually agree to retroactive designation of FMLA leave.

Employee Notice Obligations [top]

The DOL's proposed regulations clarify and expand employee responsibilities under the FMLA. The new regulations can be found at Subpart C, sections 825.300 through 825.311.

Employees Requesting FMLA Must Explain Sufficiently the Reasons They Need Leave So Employers Can Determine Whether They Are Seeking FMLA Leave
An employee giving notice of need for leave under FMLA must explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies. If the employee fails to explain the reasons for leave, it may be denied.

Calling in "Sick" is Not Enough to Obtain FMLA Protection
If employees seek leave due to their own serious health condition, they must provide sufficient information indicating that a condition renders them unable to perform the functions of their jobs. "Calling in sick," without providing more information, will not be considered sufficient notice to trigger an employer's obligations under the FMLA.

Employees Must Respond to Employers' Reasonable Inquiries
Employees have an obligation to respond to an employer's questions to determine whether leave is potentially FMLA-qualifying. Failure to respond to an employer's reasonable inquiries regarding the leave may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.

Employees Generally Must Comply with Employer Policies Regarding Process to be Followed When Requesting Leave
Absent unusual circumstances, employers may require employees to comply with the employer's usual and customary notice and procedural requirements for requesting leave. Employers may require that written notice set forth (1) the reasons for the requested leave; (2) the anticipated duration of the leave; and (3) the anticipated start of the leave. Employee may also be required to contact a specific person pursuant to company policy. Where an employee does not comply with the employer's usual notice and procedural requirements, FMLA-protected leave may be delayed or denied.
If an employee requires emergency medical treatment, he or she would not be required to follow a call-in procedure until his or her condition has stabilized and he or she has access to, and is able to use, a phone.

Medical Certification Forms and Processes [top]

The Proposed Regulations provide needed clarification to one of the most confusing aspects of the FMLA – medical certifications. The new requirements for medical certifications have been reorganized and can be found at proposed Sections 825.305 through 825.311.

DOL extends time employers have to request medical certifications

The time period for requesting medical certification has been extended to comport with the timing for eligibility notices. Employers must request medical certification no later than five business days after employees give notice of the need for leave or, in cases of unforeseen leave, within five business days after leave has commenced.
Employees have fifteen calendar days to return the completed certification form. The fifteen-day period to return the medical certification form may be extended if the employee is unable to return the form within that time period, despite the employee's diligent and good faith efforts.
The Proposed Regulations clarify that a new medical certification form may be requested on an annual basis for those serious medical conditions lasting beyond a single leave year.

An employer's right to complete and sufficient medical certifications clarified

Employers cannot deny FMLA leave because returned medical certifications are incomplete or insufficient. Rather, they must provide employees with the opportunity to cure deficiencies on certification forms. The Proposed Regulations clarify when medical certification forms are "incomplete" and "insufficient." An "incomplete" certification contains one or more unanswered questions. An "insufficient" certification includes vague, ambiguous or non-responsive answers.
The Proposed Regulations also clarify the process for curing incomplete or insufficient certifications: employers must identify, in writing, the specific information needed to make the certification complete and sufficient. Employers can use the newly designed Designation Notice for this purpose. The employee is then given seven calendar days to cure the identified deficiencies. This period may be extended if an employee is unable to obtain the additional information within the seven days, despite the employee's diligent, good faith efforts. Employers may deny FMLA leave to employees who fail to cure stated deficiencies.

DOL creates a new medical certification form (Appendix B to the Proposed Regulations)

In response to expressed dissatisfaction over the current WH-380 form medical certification form, the DOL has completely revamped the medical certification form. The changes simplify the form and elicit the information needed to grant or deny leave.

The new form includes three sections. In Section I, the employer is required to list the work schedule and essential job duties of the employee's position. The essential job duties listed on the new medical certification form will be used later in the fitness-for-duty process. Section II asks the employee to fill out basic identifying information.
The most significant changes to the form are included in Section III, the health care provider's portion. This section inquires into the specific medical facts which support the need for leave. The health care provider must list the symptoms, diagnosis, medications or other information which relates to the requested leave. If the employee requests leave on an intermittent or reduced schedule basis, the health care provider must state the leave is medically necessary. The form also includes specific questions as to the treatment schedule, the length of appointments, the estimated part-time/reduced schedule needed (if any) and information as to flare-ups.

Employers permitted to request additional information from employees during paid leaves and to comply with the Americans with Disabilities Act

The DOL recognizes that an employer may request additional information from an employee seeking FMLA leave if that information is required under a workers' compensation statute, the employer's paid leave policies or a disability plan. Proposed section 825.306(c) permits employers to request additional information from the employee; however, the employer must inform the employee that the information is not being requested in connection with the FMLA. If the employee refuses to provide the additional information, the employee is still entitled to unpaid FMLA leave. The employee may, however, forfeit his right to paid leave or other benefits.

The Proposed Regulations acknowledge an employee's leave request may trigger the interactive process under the ADA to determine if the serious health condition is a disability. When a serious health condition may also be a disability, employers are not prevented from following the procedures under the ADA for requesting medical information.

Employers may communicate directly with health care providers to authenticate and clarify certifications

In a major victory for employers, employers may contact directly an employee's health care provider, without the employee's permission, to authenticate or clarify a medical certification, provided the employee is first given the opportunity to cure deficiencies with the medical certification. Employers cannot request more medical information than that requested on the medical certification form.
For purposes of authenticating the medical certification form, the employer provides a copy of the certification form and merely asks the health care provider to verify that the information on the form was completed and/or authorized by the health care provider who signed the document.

"Clarification" occurs when the employer contacts the health care provider to inquire into the substance of the medical certification form. An employer seeking clarification must comply with the requirements of the Health Insurance Portability and Accountability Act ("HIPAA") Privacy Rule. Employees who refuse to provide HIPAA consent may jeopardize their FMLA rights if medical certifications are incomplete or insufficient.

Frequency, Timing and Content of Medical Recertifications Addressed

The Proposed Regulations clarify that in most circumstances, an employer may request recertification no more often than every thirty days and only in connection with an employee's absence. If the minimum duration of incapacity on initial medical certifications is more than thirty days, employers must wait until that minimum duration expires before requesting recertification.
When serious medical conditions are expected to last for extended periods or when the health care providers list an "indefinite" or "unknown" period on medical certification forms, employers may request recertification every six months.

Employers may provide health care providers with a record of the employee's absence pattern in connection with the request for recertification and inquire as to whether the employee's absence pattern is consistent with the serious health condition and the need for leave. These changes should help curtail employee abuse of FMLA leaves and Friday/Monday absences.
The DOL continues to deny employers second and third opinions in connection with recertifications.

Fitness for Duty Certifications Clarified

The Proposed Regulations retain the basic fitness-for-duty certification procedures but permit employers to contact directly the health care provider for purposes of authenticating and clarifying the fitness-for-duty statement. The proposal clarifies that employees are not entitled to reinstatement if they do not provide the requested fitness-for-duty certification or request additional FMLA leave.

Scope of the fitness-for-duty certifications

A major change from the current regulations concerns the scope of the fitness-for-duty certification. Existing FMLA regulations require health care providers to provide no more than a "simple statement" of the employee's ability to return to work. Quoting comments submitted to the DOL by Jackson Lewis, the proposed regulations require a much more meaningful certification. When requested by employers, a health care provider must assess the employee's ability to return to work against the essential functions of the employee's position. If the employer wants the health care provider to consider a list of essential functions, it must include the list of essential job duties with the Eligibility Notice.

The DOL has deleted the statement in the current regulations that no additional information may be acquired during the fitness-for-duty process, as clarification of the fitness-for-duty certification may result in the employer obtaining additional information. The employer may not request additional information in a fitness-for-duty certification other than what is specified.

Fitness-for-duty certifications for employees on intermittent leave

The Proposed Regulations also allow an employer to require fitness-for-duty certifications from employees who have taken intermittent or reduced schedule leave. An employer may require fitness-for-duty certification once every thirty days only if the employee has actually used leave during the thirty-day period and reasonable safety concerns exist.

Consequences of Failing to Provide Medical Certification

The Proposed Regulations provide for the following consequences if employees fail to provide timely medical certifications:

Foreseeable leave: Employers may deny FMLA coverage until the required certification is provided.
Unforeseeable leave: Employers may deny FMLA coverage until sufficient certification is provided. If employees never produce certifications, leaves are not considered FMLA leave.
Recertifications: Employers may deny continuation of the FMLA leave protections until the employee produces the recertification. If employees never produce the recertification, none of the time off is considered FMLA leave.
Fitness-for-duty certifications: Employers may delay restoration until the certification is provided. Unless employees provide either a fitness-for-duty certification or a new medical certification for a serious health condition, employees may be terminated.

Military Family Leave Provisions [top]

The DOL's Notice of Proposed Rulemaking also seeks public comment on issues to be addressed in the final regulations regarding military family leave. Section 585(a) of H.R. 4986, the National Defense Authorization Act for FY 2008, which became effective on January 28, 2008, amends the FMLA to provide leave to eligible employees of covered employers to care for covered servicemembers and because of any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty status in support of a contingency operation. Below is a summary of the relevant military family leave statutory provisions, a discussion of the subjects and issues the DOL has identified and seeks public comment on.

No Clarification Provided as to Meaning of "Active Duty," "Contingency Operation," or "Outpatient Status"

"Active duty" is defined by H.R. 4986 as duty under a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B). The DOL believes that the definition of "active duty" in the military family leave provisions of H.R. 4986 does not require further clarification.

"Contingency operation" is defined by the military family leave provisions of H.R. 4986 as a military operation designated by the Secretary of Defense as provided under 10 U.S.C. 101(a)(13). The DOL believes that the Department of Defense's definition of "contingency operation" found in Title 10 does not require further clarification.

"Outpatient status" for a covered servicemember is defined by the military family leave provisions of H.R. 4986 as the status of a member of the Armed Forces assigned to (a) a medical treatment facility as an outpatient or (b) a unit established to provide command and control of members of the Armed Forces receiving medical care as outpatients. The DOL believes this definition does not require further clarification.

DOL Clarifies What it Means for a Servicemember to be "Undergoing Medical Treatment, Recuperation, or Therapy" for a Serious Illness or Injury

The DOL's initial view is that any treatment, recuperation, or therapy provided to a servicemember for a serious injury or illness, and not just that provided by the Armed Forces, should be covered. The DOL solicits public comments on this issue. Among the issues the DOL specifically seeks comment on are: (i) Should there be a temporal proximity requirement between the covered servicemember's injury or illness and the treatment, recuperation, or therapy for which care is required? (ii) Should the DOL rely on a determination made by the Department of Defense as to whether a servicemember is undergoing medical treatment, recuperation, or therapy for a serious injury or illness?

Identity of "Next of Kin" Clarified

"Next of kin" is defined by the military family leave provisions of H.R. 4986 as the "nearest blood relative" of an individual. The DOL is consulting with the Department of Defense regarding this definition. Preliminary information suggests that, for disposition of remains, personal effects and the release of records, the Department of Defense generally considers the following individuals "next of kin" of a servicemember in the following order:

unremarried surviving spouse;
natural and adopted children;
parents;
remarried surviving spouses (except those who obtained a divorce from the servicemember or who remarried before a finding of death by the military);
blood or adoptive relatives who have been granted legal custody of the servicemember by court decree or statutory provisions;
brothers or sisters;
grandparents;
other relatives of legal age in order of relationship to the individual according to civil laws; and
persons standing in loco parentis to the servicemember.

The DOL seeks comments on whether it should adopt the above list of next of kin for purposes of the military family leave provisions and whether a certification of "next of kin" status should be required.

DOL Seeks Comments on Meaning of "Nearest Blood Relative"

The DOL also seeks public comments on the requirement in the military family leave provisions of H.R. 4986 that the next of kin be the "nearest" blood relative and specifically solicits comments on the following questions:

Should the DOL interpret this provision to mean that each covered servicemember may only have one next of kin who is eligible to take FMLA leave?
How to determine if an employee is the nearest blood relative of a covered servicemember when a servicemember has several relatives of close consanguinity still alive, and whether this language could be interpreted to provide military caregiver leave to any eligible next of kin of a covered servicemember, particularly if the nearest blood relative of a covered servicemember is unable or unwilling to provide care?
Whether it would be appropriate to permit a covered servicemember to designate any blood relative, or other individuals such as those recognized by the Department of Defense as the servicemember's Committed And Designated Representative (CADRE), as next of kin for purposes of FMLA leave taken to care for the servicemember.

Comment Sought Regarding Coverage of a Servicemember's "Serious Illness or Injury"

The DOL seeks comments on whether a certification from the Departments of Defense or Veterans Affairs should be sufficient to establish whether a servicemember has a serious injury or illness that was incurred by the member in the line of duty while on active duty status in the Armed Forces, as well as other approaches for determining whether a servicemember has an injury or illness that may render a servicemember medically unfit.

The DOL also seeks comments on whether eligible employees may take servicemember family leave FMLA to care for a servicemember whose serious injury or illness was incurred in the line of duty but does not manifest itself until after the servicemember has left military service. In such circumstances, how would one determine whether the injury or illness renders, or may render, the servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating, when the servicemember is no longer serving in the military?

Definition of a "Son" or "Daughter" Remains Unclear

The military family leave provisions rely on the FMLA's existing definitions of "parent", "son or daughter", and "spouse". H.R. 4986's legislative history, however, suggest that the term "son or daughter" should be given a broader meaning under the military family leave provisions to include adult children. The Department seeks comment on whether it would be appropriate to define some of these terms differently for purposes of leave taken because of a qualifying exigency or to care for a covered servicemember under the military family leave provisions.

Circumstances Where Qualifying Exigency Leave May Be Taken Clarified

H.R. 4986's legislative history regarding leave for a "qualified exigency" indicate spouses, parents or children of military personnel should be able to take leave for issues related directly to the deployment of a soldier such as: (i) to take care of issues like making legal and financial arrangements and (ii) making child care arrangements or other family obligations that arise when family members are on active duty deployments, for example (a) paying the bills, (b) going to the bank, (c) picking up the kids from school, (d) watching the kids, (e) providing emotional support to the rest of the family.

The DOL initially views leave for a "qualifying exigency" to be limited to non-medical related exigencies, as suggested by the legislative history, and have a temporal nexus between the exigency and the active duty or call to active duty. The DOL solicits comments on the degree of nexus required to demonstrate that the exigency arises out of the servicemember's active duty status and whether it would be appropriate to develop a list of pre-deployment, deployment, and post-deployment qualifying exigencies. If so, should the following types of exigencies qualify:

making arrangements for child care;
making financial and legal arrangements to address the servicemember's absence;
attending counseling related to the active duty of the servicemember;
attending official ceremonies or programs where the participation of the family member is requested by the military;
attending to farewell or arrival arrangements for a servicemember; and
attending to affairs caused by the missing status or death of a servicemember?

The DOL also seeks comments on whether there other types of exigencies that should qualify and whether there should be a per se list of qualified exigencies.

Meaning of "Single 12-Month Period" Clarified

Many issues remain unclear regarding the application of the military family leave provisions requiring a total of 26 workweeks of leave during a "single 12-month period" to care for a servicemember. The DOL invites comments on the following issues:

What method should be used to determine the leave entitlement to care for a covered servicemember (i.e., the calendar year; any fixed 12-month "leave year," such as a fiscal year, a year required by State law, or a year starting on an employee's anniversary date; the 12-month period measured forward from the date any employee's first FMLA leave begins; or a "rolling" 12-month period measured backward from the date an employee uses any FMLA leave) and how can this single 12-month period be reconciled with the employer's regular FMLA leave year, if different 12-month periods are used?
Is the 26 workweek leave entitlement to care for a covered servicemember a one-time entitlement or may an employee have multiple entitlements?
Can the 26-workweek leave entitlement be interpreted to apply per covered servicemember, i.e., each eligible employee may take 26 workweeks of leave to care for each covered servicemember or interpreted as a one-time entitlement to leave for an eligible employee?
Should the employee or employer have the right to select the type of leave taken in circumstances where leave to care for a servicemember also qualifies for another type of leave, such as leave to care for a spouse, parent, or child with a serious health condition?
The military family leave provisions do not limit the availability of leave to an eligible employee for other FMLA-qualifying reasons during any other 12-month period. How should these provisions be implemented if different methods are used to calculate the 12-month period for leave taken to care for a covered servicemember versus leave for other FMLA-qualifying reasons?

Clarification Needed On Whether FMLA Transfer Provisions Apply When Employees Seek "Qualifying Exigency" Leave

The military family leave provisions permit employers to temporarily transfer employees taking FMLA leave to care for a covered servicemember to available alternative positions with equivalent pay and benefits that better accommodate recurring periods of intermittent leave or leave on a reduced leave schedule. The amendments do not specifically provide for such transfers when FMLA leave is taken for a qualifying exigency. The DOL seeks comment on whether it would be appropriate to permit temporary transfers when FMLA leave is taken on an intermittent or reduced leave schedule basis for a qualifying exigency.

Requirement That Employees Seeking Qualifying Exigency Leave Provide Notice to Employers that is "Reasonable and Practicable" Likely to Track Other FMLA Rules

The military family leave provisions require that eligible employees provide notice to the employer that is "reasonable and practicable" where the need for leave due to qualifying exigency and/or need to care for a servicemember is foreseeable. Under current regulations, employees must generally provide the employer at least 30 days' advance notice when the need for leave is foreseeable. If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, a medical emergency, or because the leave is unforeseeable, notice must be given as soon as practicable under the particular facts and circumstances. The DOL's initial view is that these same notice requirements should be extended to leave taken to care for a covered servicemember or leave due to a qualifying exigency.

DOL Seeks To Clarify How Limitation on Military Family Leave for Spouses Interact with Existing Leave Limitations for Spouses Employed by the Same Employer

The DOL solicits comments on how H.R. 4986's limitation on spouses employed by the same employer would interact with FMLA's existing limitation on spouses employed by the same employer if different 12-month periods are used to determine eligibility for leave taken to care for a covered servicemember and other FMLA-qualifying leave.

DOL Seeks Comments Regarding Certifications for Military Caregiver Leave

The DOL seeks comments on the appropriate certification requirements for military caregiver leave, including whether it would be appropriate to interpret FMLA's statutory certification requirements differently for purposes of leave taken to care for a covered servicemember.

The DOL is considering whether a medical certification to support leave taken to care for a covered servicemember issued by the Departments of Defense or Veterans Affairs would, in all cases, eliminate the need to define a sufficient medical certification for purposes of taking leave to care for a covered servicemember. The DOL also is considering whether such a medical certification would eliminate the need to develop a clarification, authentication, validation, and recertification process for leave taken for this purpose. As the certifications supporting leave taken to care for a covered servicemember may often be issued by the Departments of Defense and Veterans Affairs, the DOL specifically seeks comment on whether there should be different timing and content requirements when providing such certification.

Questions Regarding Certifications for Qualifying Exigency Leave Abound

With regard to certifications for leave taken because of a qualifying exigency arising out of a servicemember's active duty or call to active duty, the DOL seeks comments on the following specific issues:

What type of information should be provided in a certification related to active duty or call to active duty status in order for it to be considered complete and sufficient? Should the certification merely require confirmation of the covered servicemember's active duty status?
Who may issue a certification related to active duty or call to active duty status? Should anyone other than the Department of Defense provide a certification of the covered servicemember's active duty or call to active duty status?
The DOL's initial view is that an employee also must provide certification that an absence(s) is due to a qualifying exigency. Because the military family leave provisions of H.R. 4986 require that the qualifying exigency arise out of the covered servicemember's active duty or call to active duty status in support of a contingency operation, should any required certification specify that the requested leave is a qualifying exigency or that it arises out of the covered servicemember's active duty or call to active duty status in support of a contingency operation?
Should an employee seeking FMLA leave due to a qualifying exigency provide certification of the qualifying exigency by statement or affidavit? Who else might certify that a particular request for FMLA leave is because of a qualifying exigency?
Should the certification requirements for leave taken because of a qualifying exigency vary depending on the nature of the qualifying exigency for which leave is being taken?
What timing requirements should be applied to certifications related to leave taken because of a qualifying exigency?
Who should bear the cost, if any, of obtaining certifications related to leave taken because of a qualifying exigency?
Should an employer be permitted to clarify, authenticate, or validate an active duty or call to active duty certification? Likewise, should an employer be permitted to clarify, authenticate, or validate a certification that a particular event is a qualifying exigency? If so, what limitations, if any, should be imposed on an employer's ability to seek such clarification, authentication, or validation for both types of certifications?
Should a recertification process be established for certifications related to leave taken because of a qualifying exigency? If so, how would that process compare to the current FMLA recertification process?

Maintenance of Health Benefits

When an eligible employee takes qualifying leave to care for a covered servicemember and fails to return from leave after the period of leave entitlement has expired, under the FMLA amendments in H.R. 4986, the employer may recover the premiums paid for maintaining the employee's group health plan coverage during any period of unpaid leave if the employee fails to return to work for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave or other circumstances beyond the control of the employee.

These new requirements focus on whether an employee does not return to work because of the continuation, recurrence, or onset of a "serious health condition" – a term that is not relevant to leave taken to care for a covered servicemember. At the same time, the military family leave provisions do not (i) explicitly address whether an employer may recover premiums paid when an employee fails to return to work because of the continuation, recurrence, or onset of a serious injury or illness of the covered servicemember nor (ii) specifically provide that an employer may obtain a certification regarding the continuation, recurrence, or onset of the servicemember's serious injury or illness if an employee does not return to work after taking FMLA leave to care for a covered servicemember.

In light of this, the DOL seeks comments on how to appropriately implement these provisions of H.R. 4986. The DOL believes that proposed FMLA regulations will need to be changed in order to address an employee's failure to return to work after taking leave to care for a covered servicemember.