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Family and Medical Leave Act Regulations Are Now in Effect

February 5, 2009
On Inauguration Day, President Barack Obama’s chief of staff, Rahm Emanuel, issued a request that the heads of all federal departments and agencies suspend the process of issuing new regulations. The request did not, however, apply to recent regulations that have already taken effect, such as the regulations that govern the Family and Medical Leave Act that went into effect just four days prior to the inauguration. Thus it appears the new Bush-era FMLA regulations will not be delayed for scrutiny by the Obama administration. Employers should consider them to be in effect, subject to change only through the normal review, public comment and approval process.

Most of the new regulations’ changes have to do with how basic FMLA requirements and definitions have been interpreted. Employers will not have to incorporate most of these changes into their FMLA policies, since most policies do not spell out in detail the kind of questions these new regulations address. All human resources professionals and managers who are involved in administering FMLA leaves will, however, need to be informed and trained about the new regulations, since they deal with a wide range of issues that can arise in the course of administering FMLA leaves.

Two new types of FMLA leave
The new regulations add two new FMLA leave entitlements that employers will want to incorporate into their policies:

1. Military Caregiver Leave: This leave covers an employee who is the spouse, son, daughter, parent or next of kin of a service member with a serious injury or illness incurred while on active duty. Such employees are entitled to up to 26 workweeks of leave in a single 12-month period to care for the injured or ill service member. Military Caregiver Leave extends FMLA job-protected leave beyond the normal 12 weeks applicable to other types of leave, based on a recommendation of the President’s Commission on Care for America’s Returning Wounded Warriors.

Important note for those administering military caregiver leave: The 12-month period applicable to this type of leave begins on the date the military caregiver leave begins, regardless of the method used by the employer to determine the 12-month period for other types of FMLA leave.

Unique qualifying status: The family relationships that trigger other types of FMLA leave entitlements do not include "next of kin." Only military caregiver leave must be provided to employees based on the need to care for an injured or ill service member who is their next of kin.

2. "Qualifying Exigency" Leave: This new type of leave is available to employees whose spouse, son, daughter or parent is either on active duty or has been called to active duty. In these situations, the employee may take leave for a qualifying exigency, which can include the following:
• Short-notice deployment: Leave of up to seven calendar days to address any issue arising from a family member being called to active duty with notice of seven calendar days or less.
• Military events and related activities: Leave to attend such events and activities.
• Child care and school activities: Leave to make arrangements for or provide child care and to handle a variety of school-related issues.
• Financial and legal arrangements: Leave to make arrangements such as preparing powers of attorney, transferring bank-account signature authority and preparing a will or living trust.
• Counseling: Leave to attend counseling for the employee, for the service member or for the service member’s children when the need for counseling is related to active-duty service.
• Rest and recuperation: Up to five days of leave for the employee to spend with a service member who is on short-term R&R leave from active duty.
• Post-deployment activities: Leave to attend ceremonies or events or to attend to funeral arrangements.
• Additional activities: Leave to address other issues related to the service member’s active duty, as agreed by the employee and employer.

Important note for those administering qualifying exigency leave: As the final category suggests, employers are authorized to designate leave for a wide range of purposes related to the active duty of a family member. Employers are encouraged to be flexible, and when in doubt about a request related to the active duty of an employee’s family member, authorize the leave.

Briefer leave periods for two types of qualifying exigency leave: Short-notice deployment leave is capped at seven calendar days, and rest and recuperation leave is capped a five days.

Clarifications of the FMLA process
The new FMLA regulations clarify a number of issues that arose under the former regulations. These clarifications include:
Employer contact with employee’s health care provider: In certain circumstances, provided specific steps are followed in the proper order, the new regulations authorize the employer to contact the employee’s health care provider:
• If an employer considers a medical certification to be incomplete or insufficient, the next step is for the employer to give the employee written notice of the deficiency and seven days to cure it.
• If the employer does not consider the deficiency to be cured, the employer may then contact the employee’s health care provider for the limited purpose of clarifying either (1) what the health provider’s handwriting states or (2) what a health care provider’s response means. The employer may not ask for additional clarification of the information provided and verification that the information was provided by the signing health care provider.
• The employer’s representative making this contact may be a health care provider, a human resources professional, a leave administrator or a management official, but it may not be the employee’s direct supervisor.
• If the health care provider is required under HIPAA to obtain the employee’s permission before providing properly requested information to the employer, and the employee does not give that permission, then the employer may deny FMLA leave on the basis that the medical certification is unclear.

Fitness-for-duty certification: The employer can require a fitness-for-duty certification only if:
• (1) By the time the employer approves the FMLA leave, the employer provides the employee with a list of the essential job functions; and
• (2) In the "designation notice" approving the leave, the employer specifies that a fitness-for-duty certification will be required and that it must address the employee’s ability to perform those essential functions.
• For intermittent FMLA leave, an employer may require fitness-for-duty certification if reasonable job safety concerns exist.

Light duty: Time spent performing "light duty" work does not count against an employee’s FMLA leave entitlement.
Waivers: Employee waivers or releases of FMLA claims are enforceable without court or Department of Labor approval.
Three days plus two visits: One definition of a "serious health condition" is three consecutive, full calendar days of incapacity plus two visits to a health care provider. The new regulations clarify that the two visits must occur within 30 days of the beginning of the period of incapacity and the first of the two visits within seven days of the first day of incapacity.
Employee notice of unforeseeable leave: To address employers’ concern about the disruptive effect of employees not providing notice of unforeseeable needs for FMLA leave prior to the start of scheduled shifts, the new regulations clarify that employees must follow the employer’s usual and customary call-in procedures for reporting an absence except in unusual circumstances.
Employer notice obligations: Employers are now required to provide four types of notice to employees:
• General notice about the FMLA (poster, employee handbook, hiring document);
• An eligibility notice;
• A rights-and-responsibilities notice; and
• A designation notice upon approval of FMLA leave.

Employers now have five business days to provide these notices, compared with two business days under the former regulations.