RECOMMENDED ACTION STEPS FOR EMPLOYERS IN LIGHT OF NEW FMLA REGULATIONS

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1 Labor and Employment Client Service Group To: Our Clients and Friends: December 8, 2008 RECOMMENDED ACTION STEPS FOR EMPLOYERS IN LIGHT OF NEW FMLA REGULATIONS On November 17, 2008, the United States Department of Labor (the DOL ) published new regulations relating to the Family and Medical Leave Act of 1993 (the FMLA ). The regulations, which will go into effect on January 16, 2009, are the first new regulations to be issued since the original regulations came out in The new regulations are available at The changes pertain to the rights and obligations of both employees and employers and cover almost all aspects of the FMLA. While employers are not likely to be entirely satisfied with the new regulations, the changes do provide helpful clarification as well as additional means to curb employee abuses. At the same time, employers need to be aware of the new communication requirements and forms that have been adopted by the DOL. Below are twelve suggested action steps for employers in light of the new regulations, along with discussions of the significant changes. 1. Update General FMLA Notices And Procedures For Providing Such Notice The optional, prototype general notice provided by the DOL has been modified (see Appendix C to the regulations). The regulations clarify that the general notice must be included in any written materials concerning benefits and leave (such as handbooks). Accordingly, posters and other written materials containing the general FMLA notice must be updated. Additionally, the regulations address the procedures for providing the general FMLA notice. The regulations provide that employers without written materials concerning benefits and leave must This Client Bulletin is published for the clients and friends of Bryan Cave LLP. Information contained herein is not to be considered as legal advice. This Client Bulletin may be construed as an advertisement or solicitation Bryan Cave LLP. All Rights Reserved.

2 provide the general notice to new employees upon hire. The general FMLA notice may be provided to employees and applicants electronically, but only if all employees and applicants have access to electronic information; if not, paper copies must be posted. When a significant portion of employees are not literate in English, the employer must provide the FMLA poster and general notice to employees in a language in which they are literate. 2. Update Procedures For Determining Eligibility Various aspects of determining employee eligibility for FMLA leave have been clarified, such that employer procedures in this regard should be updated. With respect to the 12 months of employment requirement, the regulations indicate that employment prior to a continuous break in service of more than seven years need not be counted, with certain exceptions pertaining to military service obligations and written agreements to rehire. Also, an employee may attain FMLA eligibility even if satisfaction of the 12-months requirement occurs while the employee is out on a block of non-fmla leave, but employers may not count the non-fmla portion of the leave toward the employee s 12-week FMLA entitlement. With respect to the 1,250-hours requirement, the regulations clarify that satisfaction is to be determined at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period, with eligibility as to that FMLA-qualifying reason being maintained for the remainder of the 12-month period. The time an employee would have worked for the employer but for the employee s fulfillment of National Guard or Reserve military obligations must be counted toward the 12-month and 1,250-hour requirements. 3. Update Materials And Procedures Relating To Employee Notice Of Need For Leave As discussed below, the regulations include new rules about when and how employees must give employers notice of their need for FMLA leave, as well as permissible employer actions in response to failures by employees to provide appropriate notice. Accordingly, employer procedures on this subject should be updated, as well as any related written materials provided to employees. As before, when the need for leave is foreseeable, employees must give at least 30 days notice or as soon as practicable. If at least 30 days notice is not given, a new regulation requires employees to respond to a request from the employer as to why it was not practicable to give 30 days notice. The DOL anticipates that, in the normal course, employees will be able to provide notice of the need for leave that is foreseeable less than 30 days in advance either the same day the need becomes known or the next business day. Also as before, when the need for leave is unforeseeable, employees must give notice of the need for leave as soon as practicable. The regulations now indicate, however, that it generally should be practicable for employees to provide notice of unforeseeable leave within the time prescribed by the employer s usual and customary notice requirements applicable to such leave. 2

3 Accordingly, with respect to both foreseeable and unforeseeable leave, absent unusual circumstances, employers may insist that employees follow non-discriminatory call-in procedures or written notice requirements (so long as those policies do not require notice to be provided sooner than is practicable), and a failure to do so without justification may result in the leave being delayed or denied. New examples of what it means to delay leave are provided in the regulations. Where employees are seeking leave for a previously certified condition, the condition must be referenced when notice of the need for leave is given. Further, calling in sick is not considered a sufficient notice of the need for FMLA leave to trigger an employer s FMLA obligations. Rather, employees must explain the reasons for leave in sufficient detail so that a determination as to whether the leave qualifies may be made. Employers are permitted to inquire further of the employee if necessary to make the determination, and employees are obligated to respond to such questions. A failure to respond may result in the denial of FMLA protection if the employer cannot make the determination. 4. Update Employer Notices And Procedures Regarding Eligibility, Rights and Responsibilities, and Designation The information that must be contained in the written employer notices to employees of FMLA eligibility and FMLA designation has been modified, and a new required notice (a notice of rights and responsibilities) has been created. While the prototype forms provided by the DOL (referenced below) need not be used, employers must ensure that the forms of notices used contain the necessary information. Failures by employers to comply with the various notice provisions constitute potential interference with FMLA rights, and the regulations now indicate that damages for such interference include not only lost wages and actual damages, but also appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered. With respect to eligibility, within five business days (absent extenuating circumstances) of receiving a request for FMLA leave or acquiring knowledge that FMLA leave may be needed, employers must notify employees of their eligibility to take FMLA orally or in writing (see new, optional form WH- 381, which is Appendix D to the regulations). If an employee provides notice of a subsequent need for leave during the 12-month period due to a different reason, the employer must notify the employee of any change in eligibility status within five business days (absent extenuating circumstances). If the employee is ineligible, the eligibility notice must state at least one reason for the ineligibility. If eligible, the employee must also be given a written notice of rights and responsibilities at the same time as the eligibility notice that details the expectations and obligations of the employee and explains any consequences of a failure to meet those obligations (see new, optional WH Publication 1420, which is Appendix C to the regulations). If the information in the notice of rights and responsibilities changes, the employer must notify the employee of the changes within five business days (absent extenuating circumstances) of the first notice of the need for FMLA leave subsequent to the change. With respect to designation, within five business days (absent extenuating circumstances) of obtaining sufficient information to determine that FMLA leave is appropriate, employers must notify 3

4 employees in writing that the leave has been designated as FMLA (see new, optional form WH-382, which is Appendix E to the regulations). The concept of provisional designation of leave has been eliminated. Any disputes as to whether leave qualifies as FMLA leave are to be resolved through discussions between the employer and the employee and such discussions, and the decision, must be documented. Retroactive designation is permitted if the delay does not cause the employee harm or if the employer and the employee agree on the designation. If known, the designation notice should include the number of hours, days or weeks that will be counted against the leave entitlement. If unknown (such as when unforeseeable intermittent leave is being taken), employers must notify employees of the amount of leave counted against the entitlement upon request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period. Only one designation notice is required for each FMLA-qualifying reason per leave year. However, if the information in the designation notice changes (such as if the employee exhausts the FMLA entitlement), the employer must notify the employee. 5. Update Materials And Procedures Relating To Certifications Both the certification forms and the procedures surrounding obtaining certifications and dealing with incomplete and insufficient certifications have been modified. Employers now have five days (instead of two) to request certification following the notice of the employee s need for leave (or, if unforeseen, the date the employee commences leave). The general 15-day time period for providing a requested certification applies to all cases, but employees who are unable to meet this time frame despite diligent, good faith efforts must be allowed additional time. Generally, where certification is not provided in a timely manner with respect to foreseeable leave, FMLA coverage may be denied during the period following the 15-day time period until the certification is provided. Similarly, in the case of unforeseeable leave, where an employee fails to provide a certification within 15 days of the request for the certification (absent extenuating circumstances), FMLA coverage may be denied until a sufficient certification is provided. The certification forms may (but are not required to) be given at the same time as the eligibility and rights and responsibilities notices. The DOL has developed new, optional certification forms, including one certification form that may be used when the leave is for the employee s own serious health condition (see WH-380-E, which is in Appendix B to the regulations), and a different certification form that may be used when the leave is to care for a family member with a serious health condition (see WH-380-F, which is in Appendix B to the regulations). The information required by the forms has been modified in various respects; for example, health care providers no longer are asked to indicate which definition of serious health condition is applicable. The certification form for an employee s own serious health condition includes an optional (but encouraged) section for the employer to complete identifying the employee s essential job functions, and requires the medical provider to provide information specifying what functions of the position the employee is unable to perform. The regulations also clarify that additional information received 4

5 pursuant to workers compensation, paid leave, or Americans with Disabilities Act procedures may be considered in determining an employee s entitlement to FMLA leave. The regulations include new definitions of incomplete certifications (i.e., applicable entries have not been completed) and insufficient certifications (i.e., the information provided is vague, ambiguous, or non-responsive), as well as a procedure for curing an incomplete or insufficient certification. This procedure includes a requirement that employers notify employees in writing as to what additional information is necessary. Unless not practicable despite good faith efforts, employees are given seven calendar days to provide this information, and a failure to do so may result in the denial of the leave. The regulations clarify that employees bear the burden of ensuring that a complete and sufficient certification is submitted to the employer upon request. The regulations codify the DOL s earlier opinion letter indicating that employers may require a new certification on an annual basis for conditions lasting beyond a single leave year. In all cases, recertification may be requested every six months in connection with an absence by the employee. Sooner recertification is permitted in certain circumstances. Where an employee fails to provide a requested recertification within a reasonable time period (which must allow at least 15 days), continuation of FMLA leave may be denied until a sufficient certification is provided. 6. Update Procedures Relating To Authentication And Clarification Both employees and employers have new rights and obligations with respect to the authentication and clarification of certifications. After giving employees the opportunity to cure any deficiencies in certifications, employers may contact health care providers for purposes of clarification and authentication. Such contact now may be made by the employer through either a health care provider, a human resources professional, a leave administrator (including a third-party provider), or a management official. Direct supervisors, however, may not engage in such contact. Authentication is defined as giving the provider a copy of the certification and requesting verification that the information contained on the form was completed and/or authorized by the provider. The employee s permission is not required when seeking authentication. Clarification is defined as seeking understanding as to the handwriting on a certification or the meaning of a response. HIPAA requirements must be satisfied with respect to any clarification sought. Employers are permitted to deny leave if the certification is unclear and an employee refuses to sign a HIPAA form authorizing contact with the provider for clarification purposes or to otherwise provide clarification. Employees and their family members are required to authorize their health care providers to release all relevant medical information if requested by second or third opinion providers. The period during which employers must provide a copy of a second or third opinion to the employee upon request has been increased from two to five days. 5

6 Employees must provide a written translation of any certification by a foreign provider that is completed in a language other than English. 7. Update Procedures Regarding Calculating Leave Entitlement And Usage A. Leave Entitlement Under a new rule for calculating an employee s leave entitlement when the employee s weekly schedule varies and has no normal schedule or pattern, the weekly average of the employee s hours worked over the prior 12 months (instead of the prior 12 weeks) should be used to determine the entitlement. The regulations clarify that both spouses may take their full 12 weeks of leave to care for a child (including an adopted or foster child) with a serious health condition, regardless of whether the spouses work for the same employer. B. Serious Health Conditions When the serious health condition requirement is met through a period of incapacity that is more than three consecutive, full calendar days and involves two doctor visits, the regulations indicate that the visits must be in-person visits, the two visits generally must occur within thirty days of the first day of incapacity, and the first of the two visits must occur within seven days of the first day of incapacity. When the serious health condition requirement is met through a period of incapacity that involves treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment, the visit to the health care provider must be in-person and occur within seven days of the first day of incapacity. With respect to chronic conditions, the periodic visits to a health care provider provision requires at least two visits per year. C. Overtime The DOL s policy regarding overtime hours has been clarified (but not changed) by a new regulation that states that where an employee would normally be required to work overtime, but cannot do so because of a FMLA-qualifying condition, the employee may be charged FMLA leave for the hours not worked. At the same time, required (i.e., scheduled) hours of overtime must be factored into the FMLA entitlement calculation. D. Light Duty Assignments Where an employer offers, and an employee voluntarily accepts, a light duty assignment, the time spent working in the assignment does not count as FMLA leave, and the employee does not waive the restoration right while working in the assignment. Because some employers offer open-ended (instead of finite) light duty assignments, the regulations provide that an employee s right to 6

7 restoration while in a light duty assignment expires at the end of the 12-month leave year period used by the employer to calculate FMLA leave. 8. Consider Updating Fitness-For-Duty Practices And Policies The DOL has not provided a sample fitness-for-duty certification. The new regulations indicate that employers who require such a certification may accept either a simple statement or may require the health care provider to address the employee s ability to perform the essential functions of the position. If the employer will require that a fitness-for-duty certification address the employee s ability to perform the essential functions of the position, notice of this requirement and a list of the essential job functions must be provided no later than with the designation notice of the leave as FMLA-qualifying. With respect to employees returning from intermittent or reduced schedule leave, the regulations permit employers to maintain a uniformly-applied policy requiring a fitness-for-duty certification if reasonable safety concerns (as defined in the regulations) exist. Such certifications are limited to once in a 30-day period in which such leave is taken. Notification of such a policy must be included in the designation notice. 9. Consider Updating Leave-Related Policies The regulations include changes with respect to various types of leave-related policies that employers are permitted to maintain. Employees should be given written notice of any changes made to such policies. A. Attendance Policies The regulations now expressly permit employer policies that will allow employers to better control attendance. For example, as previously mentioned, employers may insist that employees seeking FMLA leave follow non-discriminatory call-in procedures or written notice requirements so long as those policies do not require notice to be provided sooner than is practicable. Additionally, while employees may not be charged FMLA leave for periods during which they are working, the regulations permit employers to adopt policies which account for use of leave in different increments at different points in time. The example given of a permissible such policy is one that requires leave (of any type) taken during the first hour of a shift to be taken in no less than a onehour increment, thereby deterring tardies. B. Policies Relating To The Substitution Of Paid Leave The regulations reflect a change in the DOL s position regarding the substitution of paid leave: Employers may now apply their normal leave policies to the substitution of all types of paid leave (including vacation and personal leave, not just sick or medical leave) for unpaid FMLA leave. Thus, employees must comply with the terms and conditions of the employer s normal, non-discriminatory leave policy when choosing to substitute paid leave for unpaid FMLA leave (i.e., when choosing to have the paid leave and unpaid FMLA leave run concurrently). 7

8 If, for example, the employer s procedural rules permit the use of paid leave only in an increment of time larger than the amount of FMLA leave requested by an employee, the employee must take the larger increment of leave required under the policy in order to substitute paid leave for unpaid FMLA leave, and the entire amount of leave taken counts against the employee s FMLA entitlement. Employers must, however, notify employees of any additional requirements for the use of paid leave. This information must be included the rights and responsibilities notice, either by adding the information into the text of the notice itself, or by attaching a copy of the paid leave policy to the notice, or by providing a cross-reference to materials in which the leave policy is discussed (e.g., a handbook). The regulations make clear that employers and employees may agree to use paid leave to supplement disability benefits or workers compensation benefits when disability leave or workers compensation leave is taken due to a FMLA-protected serious health condition. The full amount of leave taken is counted against the employee s FMLA leave entitlement. C. Bonus Policies Employers may now disqualify an employee from a bonus or other payment based on the achievement of a specified goal (such as hours worked, products sold, safety standards met or perfect attendance), where the employee has not met the goal because the employee took FMLA leave. However, if the payment is made to employees on an equivalent leave status for a reason that does not qualify as FMLA leave, the payment must be made to the employee who took FMLA leave as well. The example given is where an employee who used paid vacation leave for a non-fmla purpose receives the payment, then an employee who substituted paid vacation leave for FMLA leave also must receive the payment. In accordance with the foregoing non-discrimination principle, pay increases based upon seniority, length of service or performance need not be granted to employees on FMLA leave unless otherwise granted to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. 10. Become Familiar With The New Regulations Relating To Military Family Leave The new regulations include provisions interpreting and implementing the military family leave amendments to the FMLA that were enacted earlier in These amendments provided: (1) the job-protected right of employees to take 26 workweeks of leave in any single 12-month period to provide care for covered servicemembers with a serious injury or illness (referred to as military caregiver leave ); and (2) a new qualifying reason for employees to take FMLA leave, specifically, leave for any qualifying exigency arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to active duty. The new regulations relating to these amendments are, for the most part, incorporated into the regulations relating to other types of FMLA leaves, although four new regulatory sections addressing military family leave also have been added. Definitions of key terms such as single 12-month period; covered servicemember, serious injury or illness, and next of kin are provided. 8

9 With respect to military caregiver leave, the regulations indicate that this one-time entitlement is nonetheless available on a per-covered-servicemember, per-injury basis. However, any workweeks of leave not taken during the 12 months following the first date leave is taken to care for a particular servicemember with a particular serious injury or illness are forfeited instead of being carried over from one 12-month period to another. Leave that qualifies as both military caregiver leave and leave to care for a family member with a serious health condition must be designated by the employer as military caregiver leave in the first instance, and cannot be counted against both the entitlement to 26 workweeks of military caregiver leave and 12 workweeks of leave for other qualifying reasons. A new, optional certification form for serious injuries or illnesses is provided, and requires the signature of a health care provider (form WH-385, which is Appendix H to the regulations). With respect to leave for a qualifying exigency, an exclusive list of seven general categories of reasons supporting such leave is provided and explained, including: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities that the employer and employee agree qualify as exigencies. A new, optional certification form is provided for qualifying exigencies, which can be self-certified by the employee (form WH-384, which is Appendix G to the regulations). 11. Train Management, Human Resource Representatives, and FMLA Administrators With Respect To The New Regulations In light of the extensive and significant changes in the regulations, all FMLA administrators as well as all managers and Human Resource representatives who may in any way deal with employees who request FMLA leave should receive thorough training regarding the new regulations and any changes made to employer policies and procedures in response to the regulations. 12. Modify Releases To Include Waiver Of FMLA Claims The regulations clarify that employers and employees may agree voluntarily to the settlement or release of FMLA claims based on past employer conduct (whether filed or not filed by, or known or unknown to, the employee at the time of the agreement) without the approval of the DOL or a court. Accordingly, releases should be modified to expressly include the waiver of FMLA claims. ************************************** For information about anything contained in this Labor and Employment Bulletin, please speak with your regular Bryan Cave LLP contact, or contact anyone in the Bryan Cave Labor and Employment Client Service Group. 9