Employers Should Update Family and Medical Leave Act Policies to Reflect Rule Changes

Family and Medical Leave Act (FMLA) regulations have been extensively rewritten and reorganized. Revisions include a number of substantive changes, as well as clarifications regarding the meaning or application of ambiguous provisions.

As of January 16, employers should post the new FMLA notice, revise their handbooks to incorporate changes in their FMLA policies—and be prepared to respond to leave requests by following the new procedure and using the new notice and certification forms.

While the following article does not attempt to address all FMLA revisions—especially those of a non-substantive nature—it provides an overview of some significant changes employers should be aware of under the new rule.

Joint Employment

In cases of joint employment, the "primary" employer is responsible for giving required FMLA notices, providing FMLA leave and maintaining health benefits.

Where an employee is placed in one employer's workplace by a temporary or leasing agency, prior FMLA regulations made the temporary or leasing agency the primary employer. The new regulations treat professional employer organizations (PEO) differently than temporary placement services.

A PEO that merely performs administrative functions such as payroll, benefits and updating employment policies would not be considered a joint employer with its clients. However, a PEO that has the power to hire, fire, assign or direct employees may be a joint employer, depending on the facts and circumstances. For employees of temporary placement agencies, the placement agency remains most likely the primary employer. Where a PEO is a joint employer, the client of the PEO most commonly would be the primary employer.

For the purposes of determining whether there are 50 or more employees within 75 miles of the employee's worksite, the employee's worksite is deemed to be the office of the primary employer from which the employee is assigned or to which the employee reports. However, if the employee has physically worked for at least one year at a facility of a secondary employer, the secondary employer's facility is deemed to be the employee's worksite.

Early Start to Leave

If an employer allows an employee to take or commence a leave before the employee qualifies for FMLA leave, the prequalification leave does not count toward the employee's annual limit of 12 weeks of FMLA leave. However, any portion of leave taken for an FMLA reason after the employee meets the eligibility requirements will be counted toward the 12 weeks of FMLA leave—even if the leave began before the eligibility requirements were met.

Under the new rule, a new employee who develops a serious health condition before meeting FMLA eligibility standards may, depending on the employer's policies, receive more leave for that health condition than would a long-time employee who takes FMLA leave and leave pursuant to an employer policy simultaneously.

Eligibility

In most cases, employment prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months. There are exceptions for breaks in service caused by military service or covered by a collective bargaining or other written agreement.

In determining whether the employee has worked 1,250 hours in the 12 months preceding the leave request, the employee must be credited with hours of service that would have been performed but for the employee's fulfilling of a National Guard or reserve military obligation.

Serious Health Condition

Among the standards for a serious health condition is a period of incapacity of more than three consecutive, full calendar days plus two visits to a health care provider or one visit that results in a regimen of continuing treatment. Under the new rule, in the absence of extenuating circumstances, the first (or only) visit must occur within seven days of the start of the incapacity, and the second visit must occur within 30 days of the start of the incapacity. For purposes of establishing a chronic serious health condition, there must normally be at least two visits to a health care provider each year.

Notices

The final rule continues to require every employer covered by the FMLA to post a notice explaining the FMLA provisions—and it provides a new form of this required notice. In addition, when an FMLA-covered employer has any eligible employees, it must also provide a second general notice to employees either by: (1) including it in an employee handbook or other written materials given to employees concerning employee benefits or leave rights; or (2) if no such written materials exist, providing the notice to each new employee upon hire.

The initial posting and notice may be provided electronically as long as all applicants and employees have access to the posting, all employees have access to the notice, and both notices include, at a minimum, all the information included in the prototype general notice.

If either the posting or notice is provided electronically and some employees or applicants do not have access to it (e.g., if some employees do not have computer access or the posting is only on a company intranet that is not accessible to applicants), the employer must maintain the posting on its premises where it can be readily seen and must provide the notice to those employees without computer access.

Employees' Notice Obligations

Like the current provision, the final rule requires employees to provide at least 30 days notice if leave is foreseeable or as soon as practicable if leave is foreseeable but 30 days notice is not practicable. The final rule specifically provides that foreseeable leave includes expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of an employee or family member, or planned medical treatment for a serious injury or illness of a covered servicemember.

Employers may require employees to comply with the employer's normal and customary notice and procedural requirements for requesting foreseeable leave unless there are unusual circumstances. In those cases where the employee is required to provide at least 30 days notice and fails to do so, the employee must, upon request from the employer, explain why such notice was not practicable. If an employee, without justification, fails to comply with the employer's usual requirements, FMLA-protected leave may be delayed or denied in some cases, but an employer may not delay or deny leave where the employer's policy requires notice to be given sooner than what the FMLA requires and the employee provides timely notice as required by the FMLA.

For unforeseeable leave, the final rule modifies the current provision, which has been interpreted to allow an employee to notify the employer of a need for FMLA leave up to two full business days after an absence, even when the employee could have provided notice sooner. The final rule provides that an employee must give notice as soon as practicable, which means within the time prescribed by the employer's normal and customary call-in procedures, absent unusual circumstances. Leave may not be denied in the case of emergency medical treatment if circumstances did not allow the employee to contact the employer. If, however, an employee fails to comply with an employer's normal and customary call-in procedures and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

The employee must provide enough information to allow the employer to determine whether the FMLA may apply. Calling in "sick" without providing more information is not enough. When an employee seeks leave due to a FMLA-qualifying reason for which the employer has previously provided FMLA-protected leave (such as in the case of intermittent leave), the employee must specifically refer to the qualifying reason for leave or the need for FMLA leave.

Response to Requests for Leave

In response to requests for FMLA leave, employers must give first an "eligibility" notice and then a "designation" notice. Employers may provide the notices at the same time if they have sufficient information to do so. Prototype eligibility and designation notices are provided with the new regulations.

The eligibility notice must be given within five business days of the employer's learning of the request for FMLA leave and must inform the employee whether the employee has met the FMLA eligibility requirements and whether the employee still has FMLA leave available in the current 12-month period. If the employee is eligible and still has FMLA leave available, the employee must also be provided a "rights and responsibilities" form, which details the specific expectations and obligations of the employee and explains any consequences of the employee's failure to meet these obligations. Among other things, employers must inform FMLA-eligible employees of any requirement to provide medical certification, the right to substitute paid leave, whether and how to pay premiums for continuing benefits, and job-restoration rights upon expiration of FMLA leave.

Once the employer has enough information to determine whether a particular leave qualifies for FMLA leave, the employer has five business days to give the employee a designation notice that such a determination has been made and state the number of hours, days or weeks that will count against the FMLA entitlement. If it is not possible to state the amount of time that will be counted, information about the amount of leave used must be provided upon request by the employee, but no more often than every 30 days.

Employer's Failure to Give Notice

An employer's failure to fulfill the notice requirements may constitute an interference with or restraint or denial of the exercise of an employee's FMLA rights and the employer may be liable for compensation and benefits lost by reason of such violations. However, if an employer does not within the required time designate leave as FMLA, the employer may retroactively designate leave as FMLA, with appropriate notice, if the employer's failure does not cause harm to the employee.

Certification of Health Care Provider

The final rule provides two new medical certifications forms: one for use in evaluating the medical need for leave due to an employee's own serious health condition and one for use when an employee requests leave to care for a family member with a serious health condition. A third certification form applies when an employee requests leave to care for a military service member.

The new forms require the health care provider to respond "yes" or "no" to a series of questions that address whether a condition meets the criteria that define a serious health condition, allow the provider to state a diagnosis, require the provider to confirm that the leave is medically necessary if the leave is needed on an intermittent/reduced schedule basis, and ask the provider to state the likely frequency with which the condition could recur and the likely duration of the resulting incapacity.

If an employee's serious health condition may also be a disability falling within the scope of the Americans with Disabilities Act, employers may now follow procedures for requesting medical information under the ADA without violating the FMLA. Moreover, employers may consider this medical information, as well as medical information obtained pursuant to workers' compensation law or the employer's paid leave policy, in determining an employee's entitlement to FMLA leave.

Medical Certification Deficiencies

In the case of an incomplete, vague or non-responsive medical certification, the employer may notify employees in writing of the additional information that is necessary to complete the certification. The employee then has seven calendar days to provide the requested information. If an employee fails to submit a complete and sufficient certification despite the opportunity to cure the deficiency, the employer may deny FMLA leave. After an employer submits a complete and sufficient medical certification, the employer (through a health care provider, human resources professional, leave administrator or management official—but not the employee's direct supervisor) may contact the health care provider for purposes of clarification and authentication.

Medical Recertification

Even if the duration of the original health care provider's certification is longer than six months, an employer may require a recertification every six months and, in any event, may require recertification at the start of every new leave year. Recertifications may be requested more frequently in certain circumstances, such as significantly changed circumstances (which an employee's taking intermittent leave more frequently than predicted in the original certification or an unexplained pattern of taking intermittent leave the day before a scheduled day off) receipt of information that casts doubt upon stated reason for absence, or a request for an extension for the leave.

Substitution of Paid Leave

Where paid leave is to be substituted for unpaid FMLA leave, the employer must clearly inform the employee of the procedural requirements for obtaining paid leave and make clear that meeting those requirements is necessary only in connection with the paid leave, not the unpaid FMLA leave. The employer and the employee may agree to have paid leave supplement temporary disability benefits, such as in the case where a short-term disability plan provides replacement for only two-thirds of the employee's salary.

Bonuses

If a bonus is based on the achievement of a specific goal such as hours worked, products sold, or perfect attendance, and the employee has not met that goal due to an FMLA leave, the payment may be denied unless it would be paid to employees who were on an equivalent non-FMLA leave. This is a change from existing regulations, which required that a perfect attendance bonus be paid despite an FMLA leave.

Substance Abuse

Employers may enforce policies calling for employment termination in the case of substance abuse even if the employee takes FMLA leave for substance abuse treatment.

Waivers of FMLA Rights

In response to court decisions interpreting the existing regulation to prohibit the settlement of FMLA claims, the new rule clarifies that the prohibition against waiving FMLA rights applies only to prospective rights and does not prevent the settlement of FMLA claims arising out of past events without the approval of the Labor Department or a court.

Preparing for Implementation

Under the final rule, every employer covered by the FMLA must post a notice by January 16 explaining the FMLA provisions.

Employers should begin revising their handbooks to as soon as possible to incorporate FMLA rule changes. Employers who are not able to revise their employee handbooks by January 16 should distribute to each employee a revised FMLA policy or notice. Human Resources and supervisory personnel should be trained in the requirements of the new regulations.

Responses to leave requests submitted as of January 16 must reflect new FMLA procedures, including use of the new notice and certification forms.

Because the requirement of caregiver leave related to military service is already in effect, employees should start, to the extent feasible, following the caregiver leave rules now. Employers should be prepared to implement military exigency leave on January 16. However, an employer receiving a request for exigency leave before January 16 may wish to honor it even though such leave before the January 16 effective date might not be counted against the employee's FMLA entitlement.

To prepare to implement these complex new rules and to deal with FMLA issues as they arise, employers are encouraged to consult with legal counsel.

Further details are necessary for a complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed within.