As we reported yesterday, the Department of Labor (DOL) issued new proposed regulations governing enforcement of the Family and Medical Leave Act (FMLA). Although there are some useful new provisions, the changes are largely disappointing for employers who were hoping that the new regulations would offer much-needed clarification and relief from administrative burdens. Despite the disappointment, employers must still take the time to understand the differences between the “old” 1995 regulations and these “new” 2008 proposed regulations. To that end, the most significant changes affecting employers are listed below.
Joint Employer Definition –
Both the old and new regulations recognize that some employees may have “joint employers,” both of whom have responsibilities under the FMLA. The new regulations clarify that a joint employer relationship generally does not arise from “Professional Employment Organizations” or “HR Outsourcing Vendor” contracts, where the PEO or vendor “merely performs … administrative duties.” However, in the rare circumstance where a PEO or vendor actually has the right to hire, fire, and assign work, a joint employer relationship is still likely to exist.
Employee Eligibility –
To be eligible for FMLA protection, an employee must have worked with an employer for at least 12 months and for at least 1,250 hours in the last 12 months. According to the new regulations, when measuring the 12-month requirement, employers are no longer required to count work performed before a break in service of 5 years or more. An exception is made for breaks in service that were required by military service or pursuant to a written agreement.
The 1,250-hour requirement is similarly changed so that credit is given for military service, time away from the job that would otherwise prevent employees from meeting this requirement.
The new regulations clarify that employees who become eligible for FMLA protection while in the middle of non-FMLA leave may acquire FMLA protection. Leave that begins before FMLA eligibility may start out as “non-FMLA” qualifying leave. However, if an employee becomes eligible for FMLA leave in the midst of the absence, FMLA protections are triggered from that point forward.
Serious Health Condition –
The DOL has provided very little help to employers attempting to determine whether an employee has a “serious health condition” subject to FMLA protection. Two small clarifications have been added in the new regulations.
One form of serious health condition involves an incapacity of more than three days and either (a) two doctor visits or (b) one doctor visit with a regimen of continuing treatment. The new regulations clarify that the first option only contemplates two or more doctor visits “within a 30-day period.”
Another form of serious health condition involves “chronic conditions.” The new regulations specify that, to qualify as a serious health condition, a chronic condition must require at least two periodic visits per year to a health care provider for treatment.
Placement of Adopted Child –
FMLA leave is available for the placement of adopted children. The new regulations specify that FMLA leave may include time to “travel to another country to complete an adoption.” FMLA eligibility is not affected by the “source of the adopted child.”
Health Care Provider –
The long list of health care providers already eligible to prepare FMLA medical certifications and treat employees has been expanded to include “physician’s assistants.”
Intermittent Leave –
The new regulations provide no useful guidance or changes regarding intermittent leave, despite widespread confusion and requests for clarification from employers.
Attendance Bonus –
The old regulations specifically required that employee bonuses based solely on attendance not be denied employees solely because of absences related to FMLA leave. The new regulations clarify that bonuses can be properly “based on the achievement of a specified goal such as hours worked, products sold or perfect attendance” and therefore can be denied employees taking FMLA leave. However, FMLA leave and similar non-FMLA leaves must be treated the same for purposes of such bonuses.
The preamble to the regulations attempts to clarify how the FMLA applies when employees do not work scheduled overtime due to a qualifying leave. Specifically, if the employee would otherwise be required to work overtime hours, the hours the employee would have been required to (but did not) work may be counted against the employee’s 12-week FMLA entitlement. When the employee works a part-time or reduced schedule, the employee’s leave usage in any given week is proportionate to the employee’s scheduled hours in the week in which the leave is used.
Light Duty –
The FMLA permits an employer and employee to agree to a “light duty” schedule that allows the employee to continue working rather than take unpaid FMLA leave. Under the old regulations, such light duty time could be counted against the employee’s 12-week FMLA allowance, even though it technically was “working time” for the employee. This provision has been deleted from the new regulations so that employees who accept light duty work need not exhaust their FMLA leave to do so.
Waiver of Rights –
The FMLA prohibits employees from waiving their rights under the statute. The old regulations were ambiguous as to whether this prohibition applied retrospectively or only prospectively. The new regulations clarify that employers cannot induce employees to waive their FMLA rights prospectively, but employees can lawfully waive their FMLA rights after the fact, even without court or DOL approval. Importantly, the new regulations expressly permit employees to waive any hypothetical FMLA violations in settlement agreements without special oversight.
Employer Notice Regarding Eligibility –
Under the old regulations, an employer was required to designate FMLA leave “within two business days absent extenuating circumstances.” The new regulations require employers to notify employees of their intention to provide FMLA leave within five business days after learning of the employee’s FMLA-qualifying condition.
The employer’s notice must provide employees with eligibility information, must detail the employee’s responsibilities, and must identify consequences for failure to comply. If the employee is not eligible for FMLA leave, the employer’s notice must so state and identify why. The DOL has created a “prototype eligibility notice” for this purpose that differs somewhat from the form provided with the old regulations. The new form includes language for additional inquiries regarding “incomplete” or “insufficient” medical certifications following the initial FMLA designation.
The new regulations clarify that employers may provide the FMLA designation notice immediately after receiving sufficient information to designate the leave as FMLA-qualifying. This appears to resolve a question under the old regulations as to whether employers are prohibited from unilaterally designating absences as FMLA leave where the employee refuses to submit necessary paperwork.
The new regulations codify the Supreme Court’s Ragsdale holding by specifying that employers may retroactively designate leave as FMLA-qualifying, so long as such designation does not “cause harm or injury to the employee.”
Employee Notice of FMLA-Qualifying Absence –
The new regulations retain the standing rule that an employee need not mention the FMLA by name to trigger its protection for a given absence. However, the new regulations do require employees to provide specific information to trigger the employer’s responsibilities. An employee’s notice of his or her need for leave should include: (a) an indication that a condition renders the employee (or family member) unable to work; (b) an anticipated duration of the absence; and (c) whether the employee (or family member) intends to visit a health care provider. This is a higher standard than was required by some courts under the old regulations. The new regulations expressly clarify that an employee cannot merely call in “sick” and thereby trigger a duty for the employer to inquire further about whether the absence is FMLA-qualifying.
The new regulations specify that employees must respond to an employer’s questions to determine whether an absence is FMLA-qualifying. Failure to do so may properly result in denial of FMLA leave.
Employer’s Usual and Customary Procedures –
The new regulations permit employers, absent unusual circumstances, to require employees to follow established call-in procedures (except ones that impose more stringent timing requirements than the regulations provide), and provide that failure to properly notify employers of absences may cause a delay or denial of FMLA protections. Specifically, employers may require employees seeking FMLA leave to call a “designated number or a specific individual to request leave.” Under the old regulations, an employer could not delay or deny FMLA leave if an employee failed to follow such procedures.
Medical Certification –
The new regulations add guidance as to what constitutes sufficient medical facts to support the existence of a serious health condition. Specifically, to streamline the certification form, the DOL proposes that such medical facts may include information about symptoms, hospitalization, doctors’ visits, prescription medication, referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment. In addition, the new regulations state that the health care provider may provide information on the diagnosis of the patient’s health condition but clarify that a diagnosis is not a required element of the certification form.
Employer Contacts with Physician –
The old regulations prohibited direct contact between employers and health care providers in most instances. The new regulations carve out an exception, allowing employers to contact physicians directly “[i]f an employee’s serious health condition may also be a disability within the meaning of the Americans with Disabilities Act,” so long as the more liberal restrictions of the ADA are observed. Under the old and new regulations, employers may also contact employees in accordance with state workers’ compensation laws.
The new regulations also permit an employer to make direct contact with the employee’s physician to seek “clarification and authentication” of medical certifications. Previously, only another physician hired by the employer could make such inquiries.
Fitness for Duty Certification –
The new regulations replace the requirement that a fitness-for-duty certification must only be a “simple statement” with the original statutory language that the employee must obtain a certification from his or her health care provider that the employee is able to resume work. Under the new regulations, the employer may provide the employee with a list of the employee’s essential job duties together with the eligibility notice, in which the employer advises the employee of the necessity for a fitness-for-duty certification. If the employer provides such a list of essential functions, it may require the employee’s health care provider to certify that the employee can perform them. When providing a fitness-for-duty certification, the health care provider therefore must assess the employee’s ability to return to work against the identified essential functions.
Family Leave in Connection with Injured Members of the Armed Forces and Qualifying Exigencies Related to Active Duty –
In the preamble to the new regulations, the DOL addresses the need to adopt regulations to implement the military family leave provisions of H.R. 4986, the National Defense Authorization Act for FY 2008, and seeks comments before issuing final regulations. Among several questions raised by the DOL are the following:
- Does each covered service member have only one next of kin who is eligible to take FMLA leave to provide care for a serious illness or injury and, if so, how does that impact who may be entitled to leave to provide such care?
- Should the definition of “son” or “daughter” under the old FMLA regulations be broadened for the military family leave provisions to include adult children since a “son” or “daughter” serving in the military is very unlikely to be under 18 years of age and since children over the age of 18 who are incapable of self-care are unlikely to be found medically qualified for military service?
- Should qualifying exigencies be limited to those items of an urgent or one-time nature arising from deployment as opposed to routine everyday life occurrences?
The DOL’s request for comments on the proposed regulations by April 11, 2008 leaves open the slim hope that additional and necessary revisions will be added to the final version. The new regulations do little or nothing to alleviate concerns about the ambiguous definition for “serious health condition,” and they provide no new insight or relief for calculating and tracking intermittent FMLA leave. Porter Wright will continue to monitor and report on the DOL’s communications concerning the new regulations.