New Regulations Issued by the Department of Labor Expand FMLA Leaves
The Department of Labor (DOL) issued new regulations interpreting The Family and Medical Leave Act (FMLA). The FMLA was enacted in 1993 and is codified at 29 U.S.C. § 2601 to § 2654. The new final regulations were issued on November 17, 2008 and became effective on January 16, 2009 and also incorporate the military family leave entitlements enacted as part of the National Defense Authorization Act for Fiscal Year 2008. The regulations are expansive and take up 200 pages in the Federal Register (29 CFR Part 825). The new regulations were developed in response to several U.S. Supreme Court and lower court cases invalidating portions of the prior regulations. The new regulations apply to all employers covered by the FMLA.
It is very important that the newly advanced Family and Medical Leave Act regulations and notice provisions be included in the employee handbook.
Here are some of the key provisions and revisions:
1. Notice of FMLA Rights: The DOL created new posters and a new Form Notice to ensure that employees are receiving the complete information about their rights and obligations under FMLA.. An employer that willfully violates this posting requirement may be subject to a fine of up to $110 for each separate offense. Additionally, employers must either include this general notice in employee handbooks or other written guidance to employees concerning benefits, or must distribute a copy of the notice to each new employee upon hiring.
2. Calculation of Leave Time: The new regulations provide guidance regarding how to calculate an employee’s 12 weeks of leave time when national holidays, employer closings, and mandatory overtime intercede during the leave. (Section 825.200)
3. Light Duty: Employees may accept light duty assignments that accommodate their serious healthy condition without losing their right to job reinstatement, but time spent on light duty assignments does not count against an employee’s 12 weeks of FMLA leave.
4. Bonuses: FMLA leave, if treated like all other types of leave, may disqualify employees from bonuses, even perfect attendance bonuses.
5. Continuing Treatment Definition: Employees will be required to see, in person, a health care provider within seven cays of the “incapacity” and obtain further treatment within 30 days of the first visit, or follow a treatment prescription.
6. Pregnancy Clarification: Spouses, and only spouses (but not boyfriends, fiancés, significant others, or fathers) may take FMLA to care for expectant mothers who are incapacitated by and during pregnancy. (California employers should beware that California requires that Registered Domestic Partners be treated as spouses for all purposes).
7. Caring for Family Members: The employee need not be the only person available to care for the family member to be eligible to take FMLA leave.
8. Timing of Employee Notice: Employees must give notice of decision to take FMLA leave as soon as practicable.
9. Employer’s Notice Requirement: Employees must comply with the employer’s notice and procedural requirements for requesting leave.
10. Denial of Leave: Failing to comply with employer’s leave procedures may be grounds for denying leave.
11. Health Care Provider Contact by Employers: Employers (such as staff in human resources) but not direct supervisors, may contact health care providers to verify or clarify information provided on the medical certification form. If an employee does not authorize direct contact, employers may deny leave. (In California, employers should proceed with caution before contacting health care providers because unlike the U.S. Constitution, the California Constitution (Article I, Sec. 1) expressly provides for protection of privacy rights)
12. Other Employer Notices and Forms: The DOL has new forms and is providing more time, up to five business days, for employers to provide Notice of Eligibility and Designation Notices to employees. Employers should update their form files because unless a notice is properly given, the employee cannot be required to submit to a fitness-for-duty examination prior to reinstatement.
13. Releases: Employees may settle or release claims (in severance of employment agreements or settlement agreements) with their employer without DOL or court approval.
A brand new area of the regulations addresses a new type of leave, created by the Injured Servicemember Leave Act which became effective on January 28, 2008. Here are the relevant provisions (Section 825.127 et seq.) that pertain to the military:
1. Employees may take a leave of up to 26 weeks in a single 12-month period to care for a servicemember who is the employee’s spouse, parent, child and next of kin with a serious injury or illness. The injured servicemember must be a blood relative or spouse;
2. The 12-month period is not flexible and starts on the firs day the employee must take the leave (thus, employers may not define how the 12-month period is calculated as they can under the previous FMLA-type leave);
3. If the leave qualifies as servicemember leave, employers must so designate it (i.e. employers cannot try to claim that the employee is only eligible for 12 weeks of leave under the “original” FMLA leave to care for inured or ill family members merely because the leave qualifies as protected leave under more than one section of the FMLA);
4. The DOL has created new certification forms through which employers may obtain information about the injured servicemember and the relationship to the employee which should be used in servicemember situations.
5. The regulations also cover “Exigency Leave” (Section 825.309) arising from an employee’s spouse, child or parent being called to active duty. Such leave only applies if the family member is a non-regular military member (e.g. National Guard, Reserves etc.) and the employee may take up to 12 weeks of leave under certain “qualifying exigencies” per year such as “short notice deployment, ” call to active duty etc.).)
Tags: Family Medical Leave Act, FMLA