SUMMIT LAW GROUP a professional limited liability company

Transcription

1 SUMMIT LAW GROUP a professional limited liability company 2009 FMLA UPDATE: FMLA Amendments and Regulatory Changes WAPELRA January 2009 Kristin D. Anger Summit Law Group 315 Fifth Avenue South, Suite 1000 Seattle, Washington (206) kristina@summitlaw.com Copyright 2009 Kristin D. Anger, Summit Law Group

2 TABLE OF CONTENTS I. INTRODUCTION... 1 II. HIGHLIGHTS (AND LOWLIGHTS) OF THE FMLA DEVELOPMENTS... 1 A. Employer Notice Requirements General Notice Requirement Expanded New Notice of Eligibility and Rights & Responsibilities New Designation Notice Clarification Regarding Retroactive Designations B. Employee Notice Requirements Clarification Regarding Timing of Employee s Notice of Need for Leave Clarification of Sufficient Notice Employees Must Respond to Employer s Inquiries Employees Must Comply with Employer Policies Regarding Process C. Eligibility Issues Counting Prior Service in Determining 12 Months of Work for the Employer Military Service Must Be Counted Toward Service Requirements Effect of Granting Leave Before 12 Months of Service D. Qualifying Leave No Major Overhaul of Serious Health Condition Definition Leave for Pregnancy, Childbirth, Adoption or Foster Care a. Male Employees Are Entitled to Leave for Prenatal Care or to Care for Incapacitated Pregnant Spouse b. Spouses Working for the Same Employer Each Get 12 Weeks of Leave If Needed To Care For Child With Serious Health Condition Definition of Chronic Condition Clarification Regarding Continuing Treatment E. Leave Entitlements Treatment of Holiday During FMLA Leave Intermittent Leave Issues a. No meaningful modification of minimum increment of intermittent leave b. Employees must make reasonable efforts not to disrupt employer s operations c. No expansion of employer s right to transfer employee to alternative position d. Employee who is unable to work mandatory overtime may be charged FMLA leave for that overtime Light Duty Cannot Be Counted Towards Leave Entitlement F. Attendance May Be Considered In Determining Bonuses and Incentives G. Releases of FMLA Claims Permitted H. Substitution of Paid Leave i Page

3 1. Employers May Require Employees To Comply With Leave Policies in Order to Use Paid Leave Employers May Require FMLA Certification, Even if Requirements For Use of Paid Leave Are Less Stringent Public Employers Can Require Use of Compensatory Time In Connection with FMLA Leave Distinctions about What Kind of Paid Leave Can Be Used For Which Kind of FMLA Leave Deleted I. Medical Certifications New Medical Certification Forms Clarification of Process Where Medical Certification Is Incomplete or Insufficient Annual Medical Certification Information Obtained for Other Purposes May Be Used to Evaluate FMLA Entitlement Employers May Communicate Directly With An Employee s Health Care Provider Regarding a Medical Certification J. Recertifications Frequency of Recertification DOL Incorporates Wage and Hour Opinion Letter Interpretation In Situations Where Employer Questions Leave Usage Second and Third Opinions for Recertifications Still Not Permitted K. Fitness-for-Duty Certifications DOL Retains Language Authorizing Employers to Require Fitness-For-Duty Certifications If Employer Relies on Uniformly- Applied Policy/Practice That Requires All Similarly-Situated Employees To Provide Certification Scope of Fitness-For-Duty Certifications Significantly Expanded Fitness-For-Duty Certifications for Employees on Intermittent Leave L. Military Caregiver Leave (New Category of Leave) Relationship Between Caregiver and Injured Servicemember Definition of Covered Servicemember Amount of Leave Certification Requirements M. Qualifying Exigency Leave Relating to Military Service (New Category of Leave) Qualifying Exigency Leave Is Available Only To Family Members of Those in the National Guard and Reserves, and to Certain Retired Military Recalled to Duty Definition of Qualifying Exigency Leave Year Is Same As For Standard FMLA Leave Entitlements Certification Requirements III. CONCLUSION ii

4 I. INTRODUCTION The last year has brought significant changes to the federal Family and Medical Leave Act. Congress amended the FMLA to create additional leave rights for individuals who take time off from work to care for a family member who is an injured or ill military service member. These amendments also allow individuals who have a spouse, son, daughter or parent who is on active duty or who has been called to duty to take leave for exigencies that arise because of that military duty. In addition, following an extensive review and comment period, the U.S. Department of Labor issued revised regulations governing how the FMLA must be administered. While the regulatory changes have long been anticipated, reaction to the revised regulations has been mixed. Employers have praised certain changes, but there were other issues important to employers that were not addressed. And some commentators have asserted that the changes undermine employee rights by making it more difficult for employees to use leave. While these materials do not amount to an exhaustive review of every aspect of the recent FMLA changes, they do cover the key aspects of importance to employers. Employers should become familiar with the new legal requirements, ensure that leave policies are updated, and administer future FMLA leave requests in accordance with the new requirements. II. HIGHLIGHTS (AND LOWLIGHTS) OF THE FMLA DEVELOPMENTS A. Employer Notice Requirements. The DOL received extensive input that many employees are not aware of or do not understand their FMLA rights. Accordingly, the DOL increased employers obligations to provide notice to employees about FMLA rights throughout the leave administration process. 1. General Notice Requirement Expanded. Employers must continue to post a notice explaining FMLA rights and providing information concerning the procedures for filing complaints for FMLA violations with the DOL s Wage and Hour Division. The poster must be displayed prominently where it can be readily seen by employees and applicants. Electronic posting is permitted. The DOL has published a revised FMLA poster, which may be downloaded from the DOL website ( A copy of the DOL poster is also included in the Appendix to these materials. In addition to this posting requirement, the general notice of FMLA rights must either be included in employee handbooks or other leave policy documents provided to employees, or distributed to each new employee upon hire. Again, this notice may be accomplished electronically. 29 1

5 CFR Having an FMLA policy in your personnel manual will not satisfy this requirement if your policy does not include all of the information in the DOL s sample notice, including guidance on how to file a complaint regarding an FMLA violation. Assuming you do not want to include such information in your policy, consider including the DOL notice in an appendix to your personnel manual or satisfying this requirement by providing the notice to all new employees upon hire. 2. New Notice of Eligibility and Rights & Responsibilities. The revised FMLA regulations modify the process employers should follow when an employee needs leave, breaking the process into two separate notices. An eligibility notice should be provided to an employee within five business days after the employee either requests leave or the employer gets information that the employee s absence may be for an FMLA-qualifying reason. This notice should indicate whether the employee is eligible for FMLA leave; if not, the notice must provide at least one reason why the employee is not eligible. This notice of eligibility may be oral or written, but employers are well-advised to provide written notice so there is documentation that the notice requirement was satisfied. Additionally, the eligibility notice can be combined with the notice of rights and responsibilities described next, which must be in writing. At the same time the eligibility notice is provided, if the employee is eligible for leave, the employer must provide written notice of the specific requirements associated with the FMLA leave. This rights and responsibilities notice must include: Notice that the leave will be counted against the employee s annual leave entitlement, and explanation of what 12-month period is applicable (e.g., calendar year, rolling year measured backward from date of FMLA usage); Any requirements for the employee to furnish certification of the need for leave (the applicable certification form may also be attached to the notice; as discussed below, the DOL has also issued revised medical certification forms for employer use); Explanation of whether the employee may or must use paid leave during FMLA leave and, if so, any conditions related to the use of such leave; Notice of any requirements to make premium payments to maintain health benefits, including an explanation of the consequences of failure to make premium payments; 2

6 If the employee is a key employee, notice of that status and the consequences of it; Explanation of the employee s right to maintenance of benefits during leave and job restoration rights following leave; and Explanation of any potential liability for payment of health insurance premiums paid by the employer during leave if the employee fails to return to work after FMLA leave. Any requirements as to whether the employee will be required to provide periodic reports of his/her status and intent to return to work may also be included in this notice, although this is not required. The requirements regarding notice of eligibility and requirements can be found in 29 CFR (b)-(c). Sample Notice: The DOL has put out a prototype Notice of Eligibility and Rights and Responsibilities that covers all of the requirements described above. That sample notice is included in the Appendix to these materials, and is also available on the DOL website ( Employers are not required to use the DOL notice, but should ensure that any alternative notice includes all requirements. One problem identified with the DOL form is that it appears to address only situations in which an employee has requested leave, stating that On, you informed us that you needed leave beginning on for:.... This language is not well-suited for situations in which an employee has not requested leave, but the employer has acquired information indicating that the employee is absent for an FMLA-qualifying reason. Accordingly, employers may want to revise the form to fit both situations, or add a handwritten notation to the DOL form to clarify the reason the notice is being provided. A sample modification of the DOL form is also included in the Appendix, although employers would need to tailor that form to reflect their own policies (e.g., indicate the 12-month period used as the leave year and whether employees are required to use accrued leave during FMLA leave). 3. New Designation Notice. Within five business days (absent extenuating circumstances) after having received notice that the employee s reason for needing leave is covered by the FMLA, the employer must provide a written notice informing the employee whether the leave is being designated as FMLA leave. This designation notice need only be provided once per qualifying reason in the applicable 12-month period; in other words, if the employee is approved for intermittent leave, the employer only needs to designate it initially, not each time leave is taken. If the employer determines that the 3

7 leave is not FMLA-qualifying, it should inform the employee of that determination. 29 CFR (d). Other requirements of the designation notice: Notice of whether the employer requires paid leave to be used during FMLA leave; If the employer will require the employee to present a fitness-forduty certification before returning to work, notice must be provided in the designation notice. If the employer will require the fitness-for-duty certification to address the employee s ability to perform essential functions, the employer must indicate that and must include a list of the essential functions of the employee s position. The FMLA regulations provide that if the employer s handbook or other written document makes clear when a fitnessfor-duty certification will be required, this notification need not also be included in the written FMLA designation notice and may be given orally; Notice of how much leave will be counted against the employee s FMLA leave entitlement. If this is not known at the time leave is designated, the employer must provide this information upon request by the employee, but no more often than once in a 30-day period and only if leave was taken during that period. The regulations also provide that if the information in the designation notice changes (e.g., the employee seeks additional leave but at that point has exhausted his/her FMLA leave), the employer must provide written notice of the change within five business days of the employee s request for further leave. Inadequate Medical Certification. If the employer believes a medical certification provided by the employee is incomplete or insufficient, it must advise the employee of that assessment, specify in writing what further information is required, and allow the employee seven calendar days to provide the requested information. 29 CFR Second/Third Medical Opinion. If the employer will require a second or third medical opinion, it can inform the employee of that requirement via the designation notice. Sample Designation Notice: The DOL has published a sample Designation Notice that complies with the new regulatory requirements. It is included in the Appendix to these materials, and is also available on the DOL website ( 4

8 The Eligibility/Rights & Responsibilities Notice and the Designation Notice may be provided at the same time when the employer has adequate information to designate leave as FMLA leave at the time the employee requests leave. 4. Clarification Regarding Retroactive Designations. In 2002, the U.S. Supreme Court issued a decision invalidating the DOL regulation that had punished employers who delayed the designation of leave as FMLA leave by precluding them from counting any of the leave preceding the designation against the employee s leave entitlement. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). The DOL has tried to address that decision in the new regulations by providing that employers may retroactively designate leave (with notice to the employee) if the employer s failure to timely designate leave does not cause harm or injury to the employee. 29 CFR (d). For example, harm might be shown where an employee takes time off to care for an ill child without knowing that the time would be counted against FMLA, and plans to use FMLA later in the year to care for a spouse who will be undergoing surgery; the employee might be able to show harm by establishing that he/she would have acted differently if the employer had designated the FMLA leave in a timely manner. Potential remedies for an employer s failure to designate FMLA leave in a timely manner include lost compensation, benefits or equitable relief such as job reinstatement. It thus continues to be important for employers to make timely designations of FMLA leave. 29 CFR (d)-(e). B. Employee Notice Requirements. 1. Clarification Regarding Timing of Employee s Notice of Need for Leave. Existing regulations provide that employees must notify employers of the need for leave as soon as practical, and explain that this will usually mean that notice will be given within one to two days of when the need for leave becomes known. The DOL received comment that this language has been interpreted by some to mean that employees need not bother to notify their employers of the need for FMLA for up to two days after the leave begins. The proposed regulations clarify that an employee should provide notice of an unforeseeable need for leave as soon as practicable, which in most cases means that the employee should be able to provide notice of the need for leave either the same day or the next business day after the need for leave becomes known. 29 CFR

9 2. Clarification of Sufficient Notice. The new regulations clarify that employees must do more than simply say they are sick to obtain FMLA protections in the event of unforeseeable leave. The DOL explains that an employee must provide information indicating that the leave is needed for an FMLA-qualifying reason (such as that employee is unable to perform the functions of the job), as well as the anticipated duration of the absence if known. If the employee seeks leave for a qualifying reason for which the employee has already taken FMLA leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. 29 CFR Employees Must Respond to Employer s Inquiries. The new regulations provide that an employee has an obligation to respond to an employer s questions that are designed to determine whether an absence is potentially FMLA qualifying, and that the employee s failure to do so may result in denial of FMLA protection. 29 CFR Employees Must Comply with Employer Policies Regarding Process. C. Eligibility Issues. Prior regulations provided that an employer could not delay or deny FMLA leave where an employee failed to follow company procedures for reporting absences. The new regulations give employers additional latitude to require compliance with internal rules. Specifically, barring unusual circumstances, employers may require employees to comply with the employer s usual and customary notice and procedural requirements for requesting leave. 29 CFR For example, an employer may require employees to call a designated number or person to request leave. The regulations also explain that in cases of foreseeable leave, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. 29 CFR (d). 1. Counting Prior Service in Determining 12 Months of Work for the Employer. Prior FMLA regulations provided that an employee must have worked for the employer for at least 12 months before he or she was eligible for FMLA leave. There was some confusion, however, about how to treat breaks in service. The DOL has clarified that although the 12 months of service need not be consecutive, employment prior to a continuous break of service of seven years or more need not be counted. The only 6

10 exceptions are where the break in service was due to military leave, or where a written agreement (including a collective bargaining agreement) establishes the employer s intent to rehire the employee after a break in service. 29 CFR Military Service Must Be Counted Toward Service Requirements. Any time spent fulfilling an employee s military service obligations must be counted toward the employee s 1250-hour and 12-month employment requirements for FMLA-eligibility purposes. 29 CFR Effect of Granting Leave Before 12 Months of Service. D. Qualifying Leave. From time to time, employers have a situation arise where an employee who is just shy of 12 months of service seeks FMLA leave. If the employer allows the employee to go ahead and take the FMLA leave given that the employee will shortly satisfy the 12-month requirement, can that leave be counted against the employee s 12-week leave entitlement? According to the new regulations, the answer is no. The employee will be entitled to the full 12 weeks of FMLA leave following the date on which he or she becomes eligible for FMLA. 29 CFR A related clarification is that an employee who is initially ineligible for leave (e.g., because he/she has not been employed for 12 months) may become eligible during the absence, in which case leave following the 12-month anniversary date is FMLA-qualifying. This is contrary to the analysis of some courts, which held that eligibility must be determined at the time the employee first needs leave. 1. No Major Overhaul of Serious Health Condition Definition. The DOL received extensive comments urging changes in the definition of serious health condition, but ultimately elected to keep the definition largely intact. 2. Leave for Pregnancy, Childbirth, Adoption or Foster Care. a. Male Employees Are Entitled to Leave for Prenatal Care or to Care for Incapacitated Pregnant Spouse. The revised regulations clarify that a male employee is entitled to leave to attend prenatal appointments with a pregnant spouse, or to care for his pregnant spouse who is incapacitated by pregnancy or childbirth. 29 CFR (a)(5). Note that the regulation uses the term spouse ; as a result, a boyfriend or the father of the child is not covered under this provision. 7

11 b. Spouses Working for the Same Employer Each Get 12 Weeks of Leave If Needed To Care For Child With Serious Health Condition. The new regulations clarify that both spouses are entitled to the full 12 weeks of leave to care for a sick child, even if they both work for the same employer (assuming they have not exhausted their respective entitlements for other purposes). 29 CFR Definition of Chronic Condition. Employers had urged the DOL to require that employees with chronic conditions provide doctor s notes confirming the need for absences. The DOL rejected this requirement, and merely made a slight modification to the definition of a chronic condition. Specifically, the DOL defined chronic serious health conditions to include those that require periodic visits defined as at least twice a year for treatment by a health care provider. 29 CFR Clarification Regarding Continuing Treatment. Under preexisting FMLA regulations, a serious health condition encompassed situations in which an employee was incapacitated for more than three consecutive calendar days and was receiving continuing treatment form a health care provider. In a minor clarification, the new regulations provide that the incapacity must continue for three consecutive full calendar days. 29 CFR In addition, in order to satisfy the continuing treatment requirement, the employee: Must receive treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist; and Must see a health care provider in person within seven days of the first day of incapacity. The additional treatment need not be in person, and the requirement can be satisfied where the employee is under a regimen of continuing treatment, such as taking prescription medication. This clarification may make it difficult to know whether an absence will be covered by the FMLA, given that the employee has up to 30 days to have a second treatment by a health care provider or be given a regimen of continuing treatment. 8

12 E. Leave Entitlements. 1. Treatment of Holiday During FMLA Leave. The new regulations confirm that where an employee is on leave for a full week, he/she is charged with a full week of leave even if a holiday falls in that week and the employee would not have been required to work that holiday. However, if an employee is using less than a full week of leave, the holiday should not be counted unless the employee was otherwise scheduled to work on the holiday. 29 CFR Intermittent Leave Issues. Few topics generate more frustration for employers than intermittent leave. Unfortunately, the DOL did little to ease the burden of this kind of leave on employers. a. No meaningful modification of minimum increment of intermittent leave. Employers had hoped that the DOL would increase the minimum increment employees could be charged for taking intermittent leave, such that employees could be charged a minimum of two hours or even half days. The DOL declined to make a significant change, and the revised regulations provide that employers must track intermittent leave in the shortest period of time used in their payroll systems for tracking employee absences, provided that it is not greater than one hour. 29 CFR Note that an employer is not necessarily required to use the shortest time increment used to track time in its payroll system, which might track time in minutes or tenths of an hour. Rather, employers must use the increments used to track other forms of leave, as long as the increment is not greater than an hour. A narrow exception to this rule was created for situations in which it is physically impossible for an employee using intermittent leave or working a reduced schedule to start or end work mid-way through a shift, such as where a flight attendant or railroad conductor is scheduled to work aboard an airplane or train. In such cases, the entire period that the employee is forced to be absent may be designated as FMLA leave. 29 CFR b. Employees must make reasonable efforts not to disrupt employer s operations. Prior regulations provided that an employee must attempt to schedule planned medical treatment requiring intermittent leave so 9

13 as not to unduly disrupt the employer s operations. The new regulations will require the employee to make a reasonable effort to schedule the leave so as not to cause disruption. This may not sound like much help to employers, but at least an employee must do more than make an attempt, and their efforts to avoid disruption must be reasonable. 29 CFR c. No expansion of employer s right to transfer employee to alternative position. It has long been frustrating to employers that the right to transfer an employee taking intermittent leave to an alternative position is limited to situations where the employee needs intermittent leave for planned medical treatment. It can be far more difficult to accommodate an employee s need for intermittent leave when the employee s need is unpredictable, so the limitation of the transfer option to situations involving planned medical treatment makes little sense. Despite this, the DOL s regulatory changes provide no change in the existing rules regarding the transfer of an employee to an alternative position, and that option remains available only where the need for intermittent leave is due to planned medical treatment for the employee or his/her family member. 29 CFR The DOL has explained that broadening this transfer right would not have been consistent with the statutory language. d. Employee who is unable to work mandatory overtime may be charged FMLA leave for that overtime. If an employee would normally be required to work overtime but cannot due to an FMLA-qualifying reason, the missed overtime can be charged against the employee s FMLA entitlement. This is not true for voluntary overtime. 29 CFR (c). 3. Light Duty Cannot Be Counted Towards Leave Entitlement. A number of courts have interpreted the existing FMLA regulations such that a voluntary light duty assignment could be counted against an employee s FMLA leave entitlement. The new regulations eliminate the language at issue, and the DOL has made clear that light duty hours should not be counted as FMLA leave. 29 CFR (d). F. Attendance May Be Considered In Determining Bonuses and Incentives. The prior regulations limited an employer s ability to award bonuses or similar rewards based on excellent attendance, given that employers cannot count FMLAcovered absences in determining eligibility for such rewards. The DOL s revised regulations allow employers to award a bonus or other payment based on the 10

14 achievement of a specified goal such as hours worked, products sold or perfect attendance, and allow employers to deny the bonus if the employee has not met the goal due to FMLA leave. The only caveat is that employers cannot disqualify individuals on FMLA-qualified leave while allowing the bonus for employees on an equivalent non-fmla status. For example, the DOL explains, if an employee who used paid vacation leave for a non-fmla purpose would receive the payment, then the employee who used vacation leave for an FMLA-protected purpose also must receive the payment. 29 CFR (c)(2). G. Releases of FMLA Claims Permitted. Preexisting FMLA regulations provided that employees cannot waive their FMLA rights, and a number of courts had interpreted that language to mean that employees could not voluntarily settle past FMLA claims without court or DOL approval. In the new regulations, the DOL clarifies that employees cannot waive prospective claims by, for example, giving up FMLA protections in return for higher wages or some other benefit. But the new regulations clearly allow parties to settle past claims without the approval of a court or the DOL. 29 CFR (d). H. Substitution of Paid Leave. 1. Employers May Require Employees To Comply With Leave Policies in Order to Use Paid Leave. The new regulations confirm that paid leave can continue to be substituted for unpaid FMLA leave, and make clear that the employer can insist that the terms and conditions of an employer s paid leave policies apply and must be followed by the employee in order to use such paid leave. If the employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements only in connection with the receipt of the paid leave; the employee will still be entitled to FMLA leave even if he/she fails to satisfy the requirements for use of paid leave. 29 CFR This notification regarding paid leave should be provided in the notice of rights and responsibilities, discussed above. 2. Employers May Require FMLA Certification, Even if Requirements For Use of Paid Leave Are Less Stringent. The DOL eliminated prior language providing that if less stringent medical certifications apply to the employer s regular sick leave benefit, the employer cannot require the employee to follow more stringent FMLA standards when paid leave is substituted for unpaid FMLA leave. According to the DOL, if the employee seeks the protections of the law for a serious health condition, the employer has a right to have the medical 11

15 information permitted by the statute, notwithstanding the employee's use of accrued paid leave offered by the employer. 3. Public Employers Can Require Use of Compensatory Time In Connection with FMLA Leave. The proposed regulations allow public sector employers to require the substitution of comp time for unpaid FMLA leave. 29 CFR Distinctions about What Kind of Paid Leave Can Be Used For Which Kind of FMLA Leave Deleted. Under the prior regulations, the substitution of paid sick leave for family leave was limited to situations in which the employee was taking FMLA leave for the employee s own serious health condition or that of the employee s child, spouse, or parent. The revised regulations eliminate this restriction. I. Medical Certifications. 1. New Medical Certification Forms. The DOL has overhauled its existing medical certification form. The DOL has also created an alternative form that may be used in situations where leave is being requested to care for a family member with a serious health condition. Both versions are included in the Appendix to these materials and are available on the DOL website ( Use of the DOL forms is optional; employers may elect to use their own forms, but cannot request information beyond what is permitted under the regulations. 29 CFR The new medical certification forms permit employers to obtain more information from the health care provider, including information about the provider s specialization, the diagnosis of the employee (or family member), information about the medical necessity and frequency of intermittent leave, and an evaluation as to which essential job functions an employee is unable to perform. Providers may also be asked for specific medical facts supporting the need for leave, as well as for information about the treatment schedule, length of appointments, and related information. In the rare case that an employee submits a medical certification from a foreign health care provider, the employee must provide the employer with a written translation of the certification upon request. 29 CFR

16 2. Clarification of Process Where Medical Certification Is Incomplete or Insufficient. If an employer determines that a certification is incomplete or insufficient, it must tell the employee in writing what additional information is needed and provide the employee with seven calendar days to cure the deficiency. An extension may be required where the employee is unable to obtain the needed information within seven days despite the employee s diligent good faith efforts. 29 CFR (c). If the specified deficiencies are not corrected in the revised certification form, the employee s FMLA leave request may be denied. A certification may be deemed deficient when it is incomplete, or where the information provided is vague, ambiguous or non-responsive. 3. Annual Medical Certification. The new regulations provide that if the employee s need for leave lasts beyond a single leave year, the employer may require a new medical certification in each subsequent leave year. These new medical certifications are subject to the rules regarding authentification and clarification (discussed below), and to rules regarding second and third opinions. 4. Information Obtained for Other Purposes May Be Used to Evaluate FMLA Entitlement. The new regulations clarify that if an employer obtains information about an employee s health status in the course of administering a workers compensation claim or evaluating reasonable accommodation, such information may be considered in evaluating an employee s entitlement to FMLA leave. Moreover, the fact that FMLA regulations restrict the information employers may request does not preclude employers from seeking broader information for other purposes, such as for evaluating the need for reasonable accommodation. 29 CFR Employers May Communicate Directly With An Employee s Health Care Provider Regarding a Medical Certification. Preexisting regulations made it very difficult for employers to obtain information from the employee s health care provider when the employer needed to authenticate or seek clarification about a medical certification. Generally, the employer was limited to having its health care provider contact the employee s provider, and only with the employee s permission. This was a source of significant frustration for employers. The DOL has made a significant change in this area by allowing employers to make contact directly with an employee s health care provider for purposes of authentication or clarification (of an initial 13

17 J. Recertifications. certification or recertification), provided that the employer has first given the employee an opportunity to cure any deficiencies. The following rules apply: To make contact with the employee s health care provider, the employer must use a health care provider, a human resources professional, a leave administrator or a management official. Under no circumstances may the employee s direct supervisor make such contact. In cases where the employer seeks only to authenticate a certification, the employer may contact the employee s provider without the employee s permission. The employer is only entitled to verify that the information on the form was completed or authorized by the provider, and no new information can be required. Where clarification is needed (which encompasses efforts to understand the handwriting on the form or to understand the meaning of a response), the employer can contact the employee s provider after obtaining a HIPAA-compliant release from the employee. If an employee chooses not to authorize such contact, and does not otherwise clarify the certification, the employer may deny the FMLA leave. 29 CFR The new regulations continue to permit an employer to require a second and third opinion where the employer has reason to doubt the validity of the employee s medical certification. The regulations also provide that an employee (or family member) may be required to authorize his or her health care provider to release all relevant medical information pertaining to the condition at issue if requested by the provider designated to provide the second or third opinion. Failure to authorize the release of this information provides a basis to deny the FMLA leave. 29 CFR Frequency of Recertification. General Rule. The revised regulations maintain the general rule that an employer may request recertification no more often than every 30 days and only in connection with an absence. 29 CFR Exceptions apply where a medical certification provides that a health condition will last more than 30 days or other under circumstances described below. Recertification for Conditions Lasting More Than 30 Days. If the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires 14

18 before requesting recertification. However, an employer is entitled to require recertification of a medical condition every six months in connection with an absence by an employee. Thus, even if a medical certification provides that a condition is permanent or will last for a year, the employer can request a recertification every six months in connection with an absence. Circumstances Justifying Recertification in Less Than 30 Days. The revised DOL regulations permit recertification in less than 30 days if: (1) an employee requests an extension of the leave; (2) circumstances described in the medical certification have changed significantly (e.g., duration or frequency of absences vary from existing certification); or (3) the employer receives information casting doubt on the reason for an absence or the validity of the certification (e.g., employee plays on employer softball team during FMLA leave). 29 CFR DOL Incorporates Wage and Hour Opinion Letter Interpretation In Situations Where Employer Questions Leave Usage. A DOL Wage and Hour Opinion letter issued several years ago reasoned that where an employer has questions about an employee s usage of FMLA leave, such as in cases of pattern use of leave on Fridays and Mondays, the employer can seek information from the employee s provider about whether that pattern is consistent with the employee s health condition as part of the recertification process. The revised regulation endorses this approach, providing that in connection with a recertification, the employer may provide the provider with a record of the employee s absence pattern and ask the provider if the serious health condition is consistent with such a pattern. 29 CFR Second and Third Opinions for Recertifications Still Not Permitted. Employers had hoped that their ability to seek a second or third opinion, which is available for initial certifications, would be expanded to recertifications. The DOL declined to make such a change, however. K. Fitness-for-Duty Certifications. 1. DOL Retains Language Authorizing Employers to Require Fitness- For-Duty Certifications If Employer Relies on Uniformly-Applied Policy/Practice That Requires All Similarly-Situated Employees To Provide Certification. This requirement of a uniformly-applied practice is somewhat frustrating, as many leave situations do not cause an employer to have concerns about an employee s return to work. And yet the employer must have a consistent practice if it wants to be able to require a fitness-for-duty 15

19 certification in a limited number of cases. Nevertheless, the DOL s proposed regulations continue to require uniformity. Specifically, the regulations provide that an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee s health care provider that the employee is able to resume work. 29 CFR (a). The new regulations also retain prior language stating that if state or local law, or the terms of a collective bargaining agreement govern an employee s return to work, those provisions shall be applied. 29 CFR (g). Courts have interpreted this language to mean that the employer and union may negotiate more burdensome return-to-work requirements than what is generally permitted under the FMLA. 2. Scope of Fitness-For-Duty Certifications Significantly Expanded. Under the prior regulations, employees could only be required to provide a simple statement from their health care provider establishing the employee s ability to return to work. The DOL heard from many employers that a more meaningful process was necessary, and the new regulations make progress in that direction. Under the revised regulations, an employer can request that the employee s health care provider specifically address the employee s ability to perform the essential functions of his/her position. The employer must provide that list of essential functions no later than when it provides the Designation Notice to the employee at the time of the leave request, and must also notify the employee that a return-to-work certification addressing ability to perform essential functions will be required. If the employer has done so, the health care provider must certify that the employee can perform the identified essential functions of his or her job as part of the fitness-forduty certification. Consistent with the procedures applicable to authentication/clarification of medical certifications, the employer can contact the employee s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Note that clarification can be requested only with regard to the serious health conditions for which the employee sought leave. 29 CFR The following rules apply: The employee bears the cost of the return-to-work certification. No second or third opinions regarding fitness-for-duty certifications may be required. An employer may delay restoration to employment until an employee submits a required fitness-for-duty certification (unless the employer failed to provide notice that a certification would be required when the employer provided the Designation Notice). If the employer provided 16

20 that notice, and the employee fails to provide the fitness-for-duty certification, reinstatement may be denied. 3. Fitness-For-Duty Certifications for Employees on Intermittent Leave. The revised regulations allow an employer to require fitness-for-duty certifications for employees who have taken intermittent or reducedschedule FMLA leave, subject to certain conditions. Specifically, an employer may require such employees to provide a fitness-for-duty certification up to once every 30 days (assuming the employee has used FMLA leave during that 30-day period) if reasonable safety concerns exist regarding the employee s ability to perform his or her duties based on the serious health condition for which the employee took leave. Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others. 29 CFR (f). If the employer elects to require fitness-for-duty certification in such cases, it must inform the employee at the same time it issues the Designation Notice that for each subsequent instance of intermittent or reduced schedule leave (or other interval specified by the employer), the employee will be required to submit a fitness-for-duty certification. L. Military Caregiver Leave (New Category of Leave). Under the National Defense Authorization Act (NDAA), Congress amended the FMLA to provide two new leave entitlements relating to military leave. The first is referred to by DOL as Military Caregiver Leave, and permits FMLA-eligible employees who are family members of covered servicemembers to take up to 26 workweeks of leave in a single 12-month period to care for that servicemember with a serious illness or injury incurred in the line of duty of active duty. 1. Relationship Between Caregiver and Injured Servicemember. The regulations provide than an eligible employee may take FMLA leave to care for an injured servicemember who is the spouse, son daughter, parent, or next of kin of the employee. Next of kin means the nearest blood relative other than the covered servicemember s spouse, parent, son or daughter. The son or daughter of the employee may be of any age. 29 CFR Definition of Covered Servicemember. A covered servicemember is a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious 17

21 injury or illness incurred in the line of duty on active duty. 29 CFR Amount of Leave. As stated above, an eligible employee is entitled to 26 weeks of time off per 12-month period for military caregiver leave. Significantly, the leave year is different than the leave year for other kinds of FMLA leave. Specifically, the leave year for military caregiver leave is based on a single 12-month period beginning on the first day the employee takes military caregiver leave. 29 CFR Also, the regulations provide that this leave is applied on a per-coveredservicemember, per-injury basis. As a result, an employee could take 26 weeks of leave to care for one covered servicemember in a single 12- month period, and then take another 26 weeks of leave in a different 12- month period to care for another servicemember. Or the employee could care for an servicemember for 26 weeks in one 12-month period, then take another 26 weeks of leave in a different 12-month period to care for the same servicemember with a subsequent serious injury or illness. An employee may use FMLA leave for a different qualifying reason as well as military caregiver leave, but the combined total of leave may not exceed 26 weeks in a single 12-month period. For example, an employee who used 12 weeks of FMLA leave for her own serious health condition would still have up to 14 weeks available for military caregiver leave. Where requested leave qualifies for FMLA coverage for multiple reasons (e.g., an employee takes leave to care for a spouse with a serious health condition, and the spouse is also a covered servicemember), the employer must designate the leave as military caregiver leave. 29 CFR Certification Requirements. The DOL has created a new certification form (referred to as Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave ) that employers may use in connection with requests for military caregiver leave. That form is included in the Appendix to these materials, and is also available on the DOL website ( As part of the certification, the employer may request that the health care provider for the servicemember provide information about the servicemember s medical condition, including whether the injury or illness incurred in the line of duty on active duty, when the condition commenced and its duration, and the need for care and duration of needed care (including whether there is a medical necessity for periodic care requiring intermittent leave by the employee). The regulations specify the health 18

22 care providers who are authorized to complete these medical caregiver certifications (e.g., providers employed by the U.S. Departments of Defense or Veterans Affairs, or private providers authorized under the DOD s TRICARE network). The employer may also request information from the employee or servicemember, including the relationship of the employee to the servicemember and related eligibility information. An employee is not required to use the DOL s sample form, but may not seek information beyond what is permitted in the regulations if the employer develops its own form. 29 CFR The regulations also provide that an employer must accept, in lieu of the DOL form or the employer s own certification form, an invitational travel order or invitational travel authorization issued by the military to any family member to join an injured or ill servicemember at his or her bedside. Authentification or Clarification. An employer may seek authentification or clarification of military caregiver certifications under the same guidelines applicable to other FMLA certifications. Second or Third Opinions. An employer is not entitled to require second or third opinions from health care providers in connection with certifications for military caregiver leave. Proof of Relationship to Servicemember. The regulations allow an employer to require confirmation of the employee s relationship to the servicemember, which may take the form of a birth certificate, court document or even a simple statement from the employee. 29 CFR ; 29 CFR (j). M. Qualifying Exigency Leave Relating to Military Service (New Category of Leave). The other new leave entitlement created under the NDAA is referred to as Qualifying Exigency Leave. This FMLA amendment entitles eligible employees to take up to 12 weeks of leave due to a qualifying exigency arising out of the fact that the employee s spouse, child, or parent is on active duty or has been notified of an impending call to duty in support of a contingency operation. 1. Qualifying Exigency Leave Is Available Only To Family Members of Those in the National Guard and Reserves, and to Certain Retired Military Recalled to Duty. Note that family members of military service personnel in the Regular Armed Forces are NOT eligible for qualifying exigency leave. The apparent rational for this limitation is that career military personnel in the regular armed forces are deemed to accept the conditions and disruptions 19

23 associated with military service. In contrast, those who are in the reserve forces or who have retired from the military are likely to experience significant disruption in their lives if called up to active duty. Qualifying exigency leave is intended to ensure that family members of reserve or retired military members have time off to address that disruption occasioned by a military call-up. 29 CFR Definition of Qualifying Exigency. The DOL regulations provide a broad list of activities that are considered qualifying exigencies warranting leave. 29 CFR They include: Short-notice deployment. Covers leave needed to address any issue arising from the fact that a covered military member is notified of an impending call to active duty seven or less days prior to the date of deployment. Leave for this purpose can be used for the seven calendar days beginning on the date the military member is notified of deployment. Military events and activities. Encompasses official ceremonies, programs or events sponsored by the military or family support or assistance programs, and informational briefings. Childcare and school activities. Allows leave to provide childcare or arrange for alternative child care when deployment necessitates a change in existing childcare arrangements. Also covers leave to enroll or transfer a child to a new school or daycare facility, when the change is necessitated by deployment, or leave for meetings with school or daycare staff arising from deployment. Financial or legal arrangements. Covers leave needed to make financial or legal arrangements to address the military member s absence, such as preparing powers of attorney and will/trust documents. Counseling. Provides time off to attend counseling for the employee, the military member, or child arising from the call to active duty. Rest and Recuperation. Provides up to five days of leave for each instance in which an employee wants to spent time with a covered military member who is on short-term, temporary, rest and recuperation leave during deployment. Post-deployment activities. Covers activities such as arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following termination of the military members active duty status. 20

24 Also covers issues that arise from the death of a military member while on active duty status. Other. Covers any other events that arise out of the military member s active-duty deployment if the employer and employee agree that the leave qualifies as an exigency and agree to the timing and duration of the leave. 3. Leave Year Is Same As For Standard FMLA Leave Entitlements. The leave year may be designated as the calendar year, a different fixed 12-month period, or a 12-month period measured forward or backward from the employee s absence. Thus, in contrast to military caregiver leave, qualifying exigency leave can be counted using the same leave year used for other forms of FMLA leave (e.g., leave for the employee s serious health condition. Also, qualifying exigency leave counts against an employee s 12-week entitlement of FMLA leave. Therefore, if an employee uses four weeks of FMLA leave for qualifying exigencies, he/she would have eight weeks of FMLA leave remaining for other FMLA-qualifying purposes (with the exception of military caregiver leave, as the leave entitlement for that kind of leave is 26 weeks). 4. Certification Requirements. The DOL has created a new certification form (referred to as Certification of qualifying exigency for Military Family Leave ) that employers may use in connection with requests for qualifying exigency leave. That form is included in the Appendix to these materials, and is also available on the DOL website ( As part of the certification, the employer may require the employee to provide a copy of the covered military member s active duty orders or other documentation issued by the military indicating that the member is on active duty or has been called to active duty. The employer may also require that the employee provide facts establishing a qualifying exigency, the timing and duration of the leave needed (e.g., beginning and end dates or frequency/duration of intermittent leave) and, if applicable, contact information for the individual with whom the employee will be meeting and a statement of the purpose of such meeting. 29 CFR Verification. If the qualifying exigency involves a meeting with a third party, the employer may contact that individual (without the employee s permission) to verify the purpose and timing of the meeting. The 21

25 employer may also contact the Department of Defense to verify that a military member is on active duty or has been called to active duty. III. CONCLUSION The revised regulations took effect on January 16, Accordingly, employers should act promptly to update their FMLA policies, practices and forms to ensure compliance with the new requirements. It will also be essential to train human resources staff and supervisors regarding new FMLA procedures to ensure compliance with the new regulations and statutory provisions. The revised regulations may be accessed via the DOL website ( Also on the DOL website are various fact sheets explaining the revised regulations and the new requirements for qualifying exigency and military caregiver leave. Disclaimer These materials are intended to provide an overview of new developments under the FMLA. They are not intended and should not be used as a substitute for specific legal advice or opinions regarding legal requirements. Recipients of these materials should consult with legal counsel for specific legal guidance on revising personnel policies and practices. 22

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51