The New FMLA Regulations - Some Helpful Changes

As previously reported, the Department of Labor ("DOL") has issued its revisions to the Family and Medical Leave Act regulations. The regulations were published Monday in the Federal Register and are now available on the DOL's website. While the changes are significant, keep in mind that these changes do not become effective until 60 days after the publication date. The final regulations contain extensive changes to the rules governing how FMLA leave requests should be handled. Employers are well advised to prepare now. Highlights of the many changes are below.

Serious Health Condition
The regulations substantially reconfigure the provisions on serious health conditions, and also make a few changes to the requirements. Currently, one type of serious health condition is for situations involving a period of incapacity of more than three consecutive calendar days that also involves "continuing treatment." Continuing treatment for these purposes is either treatment two or more times by a health care provider, or treatment on at least one occasion that results in a "regimen of continuing treatment under the supervision of the health care provider." The new regulations require that the employee's two or more visits to a health care provider occur within 30 days of the period of incapacity, and that the first visit (or the only visit in situations involving a regimen of continuing treatment) take place within seven days of the first day of incapacity. For chronic serious health conditions, the requirement for "periodic visits for treatment by a health care provider" means that the condition requires at least two visits per year.

Increments Of FMLA Leave For Intermittent Or Reduced Schedule Leave
The references to "payroll system" and "absences" in relation to increments of intermittent or reduced schedule leave have been eliminated in favor of the term "use of leave." The final regulation titled "Minimum increment" makes clear:

• • the employer must account for the intermittent or reduced schedule leave under FMLA "using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour."
  • under no circumstances may an employer account for FMLA leave in increments of greater than one hour, even if such increments are used to account for non-FMLA leave.

The DOL also addressed the treatment of missed overtime hours. An employee who would have been required to work overtime but for the taking of FMLA leave may be charged FMLA leave for the hours not worked. For most employers this likely does not represent a change in practice.

Penalty for Failure To Restore Health Insurance Coverage
The final regulations add a new employer penalty relating to health insurance. If an employee's health insurance lapses because the employee failed to pay his or her share of the premium, and the employer fails to restore the employee's health insurance when the employee returns to work, the employer may be liable for benefits lost, other actual monetary losses sustained as a result of the violation, and for equitable relief.

Waiver Of FMLA Claims
Resolving a long standing split among the Courts, the new regulations provide that the general regulatory prohibition on employees waiving their FMLA rights does not prevent a settlement or release of existing FMLA claims.  The regulations also clarify that such settlements do not require DOL or court approval.

Employer Notice And Designation Of Leave
The amended regulations also contain significant changes to both the employer and employee notice requirements, as well as to the certification procedures. As any FMLA covered employer knows, FMLA compliance is time sensitive and document intensive. The same remains true under the new regulations, although the time frames for employer action are marginally more relaxed. Key changes regarding employer notice provisions are as follows:

• • Electronic posting and distribution of the FMLA poster is now permissible.
  • Rather than two business days, employers now must notify employees of their eligibility for leave within five business days of a request for leave (or of acquiring knowledge that an employee may have a need for FMLA leave), absent extenuating circumstances. That eligibility notice must either state that the employee is eligible or, if ineligible, must state at least one reason why the employee is not eligible for FMLA leave. The DOL has developed a form that employers may use to notify employees regarding their eligibility.

The DOL failed to make any significant changes to the employer's obligation to provide notice detailing the expectations and obligations of the employee. This so called rights and responsibilities notice is to be provided at the time of the eligibility notice. It too may be distributed electronically.

After receiving the completed medical certification, an employer will now have five business days to notify the employee as to whether the leave will be counted as FMLA time. In addition to notifying the employee that their leave counts as FMLA time, this designation notice should also include the following:

• • Whether the employer will require a fitness for duty certification before allowing the employee to return to work. If the fitness for duty certification must address the employee's ability to perform the essential functions of the employee's job, the employer must include a list of the employee's essential functions with the designation notice.
  • The amount of time in hours, days or weeks that will be counted against the employee's leave entitlement, if known. If this is not determinable at the time of the designation notice, then the employer must provide this information upon employee request.

According to the DOL, failure to provide any of the notices contained in 29 C.F.R. 825.300 (poster, the notice of rights and responsibilities or the designation notice) may constitute an interference with, restraint, or denial of FMLA rights for which an employee may be entitled to compensation and equitable relief.

Employee Notice Provisions
The provisions regarding employee notice of a need for leave are not as employer friendly as the proposed regulations had suggested. In general, the amount of notice owed to an employer for foreseeable leave has not changed - at least 30 days or as soon as practicable. With respect to a qualifying exigency, where the need for leave is foreseeable, notice must be provided as soon as practicable. "As soon as practicable" is defined as providing notice of the need for leave either the same day or the next business day after becoming aware of the need for leave.

The regulations also address many issues commonly faced by employers that were resolved in case law but not in prior regulations. For example, the regulations confirm that when an employee takes leave for a reason previously approved, the employee should specifically reference the qualifying reason for leave or the need for FMLA when calling off work. Moreover, calling in "sick" is not sufficient under the regulations to put an employer on notice of a need for leave. The regulations also confirm that an employee may be required to contact a specific individual to request leave but, as in many other notice situations, the regulations allow the employee an out due to "unusual circumstances."

In cases of unforeseeable need for leave, the new regulations did away with the rule that allowed employees to miss work with no notice for two business days before advising the employer of their need for FMLA. The revised regulations require employees to give notice as soon as practicable, and to comply with employers' usual and customary notice and procedural requirements. Thus, for example, employers may require employees to contact a specific individual to request leave. Again, employees may be excused from these requirements under "unusual circumstances."

Certification
Many changes have been made in the procedures for obtaining certification of a need for leave, including a full complement of new certification forms. The timing rules are relaxed in that employers now have five business days after learning of the need for leave in which to request a medical certification. Where the certification received is incomplete or otherwise insufficient, the employer must advise the employee in writing and identify the additional information that is necessary before the employer will consider the certification as complete and sufficient. Employees are allowed seven calendar days to correct the deficiencies in the certification form.

Clarification And Authentication of Medical Certifications
The rules permitting employers to clarify and authenticate the medical certification provided by the employee contain some new provisions that many employers will likely find helpful. After an employee is given an opportunity to cure any deficiencies in the certification, the employer may contact the health care provider to clarify and authenticate the medical certification.  When making this contact the employer may use a health care provider of its own choice, a human resources professional, a leave administrator or a management official. This significantly broadens those who may contact the employee's health care provider as compared to the old regulations. This process is limited to 1) authentication, meaning requesting verification of the information provided in the certification and confirming that it was authorized by the health care provider who signed the document and 2) clarification, meaning contacting the provider to better understand the meaning of a response or to translate otherwise illegible handwriting. In light of HIPAA, however, the actual utility of this provision may depend on whether the employee is willing to sign an authorization allowing their health care provider to speak directly with human resources.

Certification Of A Qualifying Exigency
The DOL has developed a specific form that may be used in obtaining certification of a qualifying exigency under the new military FMLA leave provisions. This certification should provide a variety of information, including the facts that support a need for leave and the dates of leave.  If the need for leave involves meeting with a third party, then the employee is expected to provide contact information for that third party. In addition, employers may require a copy of the service member's active duty orders or other documentation from the military confirming that the service member is on active duty or called to such status in support of a contingency operation. Note that employers are allowed to contact any third party identified by the employee on their certification and need not first obtain the employee's permission. Similarly, employers may also contact the Department of Defense or other appropriate military unit to request verification of the service member's active duty status.

Certification Of A Need To Care For A Covered Service Member
There are two methods that may be used to certify a need for leave to care for a covered service member under the new military FMLA leave provisions. The employee may use the DOL's form, or may provide Invitational Travel Orders ("ITO's") or Invitational Travel Authorizations ("ITA's") that are issued to a family member by the military. An employer must accept an ITO or ITA if it is provided, and may not instead require completion of a certification form. Note that the ITO or ITA will establish an employee's right to leave even if the employee's name does not appear on the ITO or ITA. It is only when the employee seeks leave beyond the dates shown on the ITO or ITA that an employer may then request certification on the DOL's standard form. Importantly, recertification and second and third opinions are not permitted when the leave is to care for a covered service member.

The changes and additions to the FMLA regulations are too numerous and significant to cover fully in this format. In light of the scope of the changes and the impact on daily FMLA administration, Baker & Daniels will be hosting half-day seminars in three locations in December. We hope you can join us for this important discussion of the changes and their impact on your leave administration practices.