New Family And Medical Leave Act (FMLA) Regulations Address Wide Range of Issues

New FMLA Regulations Took Effect January 16, 2009, Significantly Impacting FMLA Law

On November 17, 2008, the US Department of Labor issued long-awaited updated regulations governing the Family and Medical Leave Act (FMLA), effective January 16, 2009.

The first post in this series covered the changes in employer and employee notification requirements under the new FMLA Regulations.

Today, we’ll look at some other significant changes, affecting a wide range of FMLA situations that had been problematic under the original FMLA regulations.

Changes in Medical Certification Process Under New FMLA Regulations

Changes Beneficial to Employers

Initial Certifications:

• Employers now have 5 business days after employee gives notice of need for leave in which to request medical certification.
• Employees now must furnish certification from healthcare provider within 15 calendar days unless it is not practicable to do so despite diligent, good faith efforts, or the employer requests additional information.
• If employees do not furnish proper certification within the required time, employers may deny FMLA leave until required certification is provided. Prior regulations only allowed employers to delay leave.
• Human resources representatives, leave administrators, and management officials may now contact employee’s healthcare provider directly to request clarification of medical certification.

Recertifications:

• Employers can require new medical certification every leave year in cases where serious health condition extends beyond single leave year.
• Employers may request medical recertifications for continuing, open-ended conditions every 6 months, rather than after passage of specified minimum duration of condition. Recertifications may be requested more frequently if there are other changed circumstances or other reasons outlined in the regulations.

Fitness-for-Duty Inquiries:

• In fitness-for-duty inquiries, employers may now demand more than simple statement of ability to return to work. They may require that certification specifically address ability to perform essential job functions.
• Employers may now ask for fitness-for-duty certifications for intermittent leave up to once every 30 days if reasonable safety concerns exist.

Other:

• Employers may now follow procedures for requesting medical information under ADA or paid leave or workers’ compensation programs without violating FMLA.

Changes Beneficial to Employees

• Employee’s direct supervisor may not make contact with employee’s health care provider, and employer may need HIPAA authorization from employee before healthcare provider will provide information to other employer representatives. Employer may not require such authorization as condition of employment, but may deny FMLA leave if not provided.
• In case of incomplete medical certification, employers must notify employee in writing of additional information needed and allow seven calendar days to provide it. If employee fails to submit complete and sufficient certification despite this opportunity to cure deficiency, employer may deny FMLA leave.

Changes in Definition of Serious Health Condition Under New FMLA Regulations

The original version of this definition, which determines FMLA eligibility for the employee’s condition or that of a family member, had been criticized by employers as making it too easy for employees to qualify for FMLA leave.

Under the new FMLA regulations, the six individual definitions of “serious health condition” were retained. But the following changes, favorable to employers, were made:

• For the requirement of more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity
• For the requirement of “periodic visits to a health care provider” for chronic serious health conditions, there must be at least two such visits per year.

New FMLA Forms Accompany New FMLA Regulations

Along with the new regulations, the DOL has issued a series of new or revised FMLA forms.

Their use is optional. However, absent a compelling reason not to do so, it would make sense to use them. The new forms are:

For General Use:

• Notice for posting
• Notice of FMLA eligibility
• Medical certification form requiring more information, and allowing employer to attach job description for health care provider to determine if employee can perform essential job functions
• Separate certification form for leave to care for family member, requesting information on type of care employee must provide to family member
• Leave designation notice

For Military Leave:

• Certification of qualifying exigency
• Certification of serious illness/injury of covered servicemember

Effect of New FMLA Regulations on Counting Weeks of Leave

Several provisions of the new regulations address very specific issues that sometimes arise when keeping track of how much leave an employee has used.

• If employee works varied schedule from week to week, weekly average hours over 12 months preceding leave period should be used in calculating how many hours of absence count as a week.
• Inability to work overtime must be counted against employee’s FMLA leave entitlement if employee would otherwise have been required to work overtime.
• Employers must account for intermittent or reduced schedule leave using increment no greater than shortest period of time employer uses to account for use of other forms of leave, but no greater than one hour. Employers need not use increments of 6 minutes or even 15 minutes just because their payroll systems are capable of doing so, if they do not use such increments for other absences.
• Where nature of workplace makes it physically impossible for employees to start work midway through shift, entire shift may be designated as FMLA leave (e.g., airline flight attendant, train conductor). This exception is to be very narrowly applied.

Impact of New FMLA Regulations on Releases, Attendance Awards, and Light Duty

The new FMLA regulations also address a variety of other issues that had proven troublesome under the original regulations.

• Employees may voluntarily settle existing FMLA claims without court or Department of Labor approval.
  • This may be in settlement of particular asserted claims or as part of a general waiver or release (e.g., upon receipt of severance pay).
  • On the other hand, they may not waive future claims.
• Employers may consider FMLA absences in determining bonuses and other incentive rewards.
  • This includes disqualifying employee from perfect attendance bonuses or other payments based on achievement of specified job-related performance goal if employee has not met goal due to FMLA leave.
  • There must be no discrimination in such disqualification, relative to non-FMLA absences.
• Employee’s rights to FMLA leave and job restoration are not affected by light-duty assignments.
  • Employee with FMLA-qualifying serious health condition may work light-duty assignment instead of taking FMLA leave. In this situation, employee’s right to job restoration is essentially on hold during light-duty assignment.
  • When light-duty assignment is over, employee has the right to be restored to position held when FMLA leave (or entitlement) commenced or employee may use remaining FMLA leave entitlement.
  • Employee’s right to restoration while on light-duty assignment expires at end of 1-year period used to calculate leave.

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