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Family Medical Leave Act Update: Changes in the Law and Review of Final Regulations

On January 16, 2009, the Final Regulations altering the scope and breadth of the Family Medical Leave Act (“FMLA”) became effective.  Under the prior version of the FMLA, eligible employees were entitled to up to twelve workweeks of unpaid leave in a single twelve-month period for certain occurrences.  An eligible employee is one who:

“worked for that employer for at least twelve months; and worked at least 1,250 hours during the twelve months prior to the start of the FMLA; and worked at a location where at least fifty employees are employed at the location or within seventy-five miles of that same location.”

The situations under which an eligible employee was entitled to FMLA leave was limited to these specific categories:

  • The birth of a child and to care for that newborn child; or
  • Placement of a child through adoption or foster care and to care for that newly placed child; or
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
    When not able to work because of their own serious health condition.

The Final Regulations expand the protections of the FMLA in a significant manner to include two new military leave provisions.  The first of these new groupings is the “Military Caregiver Leave,” which provides that eligible employees (apply the same standards for eligibility under the prior FMLA) who are family members of covered service members may take up to twenty-six work weeks of leave, in a single twelve-month period, to care for a covered service member with a serious illness or injury, incurred in the line of duty while on active duty.  Note that this provision is substantially more inclusive as it is not restricted to family members, but includes “next of kin.”  Next of kin is defined as the nearest blood relative who is able to care for that covered service member.

The second new grouping extends FMLA protection to eligible military family members on the basis of a “Qualifying Exigency Leave.”  This new provision provides protection to eligible employees with a covered military member serving in the National Guard or Reserves.  Note that this leave does not extend to members of the Regular Armed Forces.  Such eligible employees may take up to twelve work weeks for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation.  A “qualifying exigency” may include:

  1. short notice deployment;
  2. military events and related activities;
  3. child care (not routine child care, but child care on an emergency basis for or time taken to seek permanent child care) and school activities;
  4. for financial and legal arrangements;
  5. counseling;
  6. rest and recuperation;
  7. pre and post-deployment activities; and
  8. additional activities not covered but agreed to by the employer and employee.

Important Notice Requirements

Employer’s Obligations: The employer must post notice of FMLA rights and distribute that same notice to each employee on an annual basis. Under the Final Regulations, the employer must notify an employee of FMLA eligibility within five (5) business days of its determination that the leave may be an FMLA leave by complying with the following Notice obligations:

Designation Notice: Employers must notify employees in writing that a leave is designated as an FMLA leave within five days of receiving sufficient information to determine that the leave is under the FMLA’s protection.  In this notice, employers must inform the employee of the specific amount of hours, days, or weeks which will be counted as FMLA leave, as well as the time will not be counted as FMLA.  Note: The Final Regulations permit an employer to retroactively designate an absence as FMLA in response to Ragsdale v. Wolverine Worldwide, Inc., 534 U.S. 81 (2002).

Employee’s Obligations: As is in all FMLA requests, an employee must provide requested certification to the employer within the time frame requested by the employer (which, at a minimum, is fifteen days after the employer’s request), unless the circumstances render it impractical or impossible.  Moreover, unlike the vague requirements of the current FMLA, the new law provides that employees must follow the employer’s usual and customary call-in procedures for reporting an absence, except in unusual circumstances.  Calling in “sick” without providing more information, does not constitute sufficient notice under the Final Regulations.  Further, the law provides that employees have an affirmative obligation to respond to an employer’s questions regarding the potential for employee’s absence as a qualifying FMLA leave.  Failure to respond to such questions may result in a denial of FMLA protection.

Medical Certification Form WH-380 provides for a more detailed exchange of medical information than contemplated under the prior law.  The expanded FMLA provides for an open exchange of information by permitting direct communication between an employer and a health care provider (which, for the first time explicitly includes a Physician’s Assistant.)  This direct flow of communication, however, does not permit an employer to ask for additional information beyond that which is required on the certification form.  And, in deference to the HIPAA Privacy rules governing employee information, the Final Regulations restrict which representatives of the employer may contact the employee’s health care provider to either a company health care provider, a Human Resources professional, a Leave Administrator, or a Management official.  Under no circumstances may the representative be the employee’s direct supervisor.

In the event that medical certification is incomplete or insufficient, the employer must specifically list which information is missing in writing.  The employee has seven calendar days in which to provide the missing information.

Timing: In the event that leave is taken for the employee’s own serious medical condition, an employer may request re-certification of that ongoing condition every six months in conjunction with the employee’s continued absence.

Continuing Treatment of a Serious Health Condition

The Final Regulations require that, in order to receive the protection of the FMLA for ongoing treatment of a serious health condition, the employee must demonstrate two visits to a health care provider within thirty days of the inception of the incapacity.  The first visit to the health care provider must take place within seven days of the first day of incapacity.  “Periodic visits” for chronic serious health conditions requires at least two visits to a health care provider per year.

What Should Employers Do?

Comply with the law!

Post the new requirements in employee accessible areas and distribute copies of that poster notice to all employees on an annual basis;
Educate its managers and Human Resources professionals about the new requirements and obligations under the FMLA; and
Most importantly, when in doubt, contact an experienced employment attorney.

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