The 15-year-old Family and Medical Leave Act (“FMLA”) was amended for the first time in January 2008. The amendments were encompassed within a broader piece of legislation known as the National Defense Authorization Act for Fiscal Year 2008 (“NDAA”), and created additional categories of leave related to military service and the need to care for servicemen and women. On November 17, 2008, the Department of Labor (DOL) published its final rule to implement the NDAA Amendments and revise some of the original regulations. The new regulations do not reduce the scope of coverage under the FMLA, but does seek to clarify the duties and obligations of both employers and employees under the Law. Below is a summary of some of the more important additions and revisions set forth in the Final Rule. A complete copy of the new regulations can be accessed electronically at the DOL’s website: http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763

Military Caregiver Leave: §825.124
The NDAA Amendments entitle 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 a covered servicemember. In order to qualify for leave under this provision, the covered servicemember must have suffered a serious illness or injury incurred in the line of duty on active duty. This provision provides an additional leave entitlement beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to care for additional family members (i.e., next of kin) beyond those for whom traditional FMLA caregiver leave had been allowed (i.e. spouse, child, parent, etc.). An eligible employee’s leave is capped at 26 weeks within a 12-month leave period. Therefore, an employee is not entitled to receive 12 weeks of leave in addition to 26 weeks of Military Caregiver Leave. Additionally, a qualified employee is still limited to 12 weeks of traditional FMLA leave. Appendix H to the Final Rule provides employers with a new form designed to allow the employer to obtain information required to confirm the qualified employee’s need for Military Caregiver Leave.

Qualifying Exigency Leave: §825.126
The second new military leave entitlement created by the NDAA is designed to help families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. A Qualifying Exigency Leave may be taken for the traditional 12 workweeks by an eligible employee with a covered servicemember serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that servicemember is on active duty or called to active duty status in support of a contingency operation. The Final Rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave: (1) Short-notice deployment; (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation; (7) Post-deployment activities; and (8) Additional activities not encompassed in the other categories, but agreed to by the employer and employee. Appendix G to the Final Rule provides employers with a new form designed to allow the employer to obtain information required to confirm the qualified employee’s need for Qualifying Exigency Leave.

Penalty Provisions: §825.301
The U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc. invalidated a penalty provision in the DOL’s original regulations which penalized an employer if it failed to properly inform a qualified employee that his or her leave was being treated as FMLA leave. Ragsdale ruled that the original regulation’s penalty provision was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement that an employee demonstrate individual harm. Several other courts had also invalidated similar categorical penalties in other notice provisions of the original regulations. The final rule therefore removes these categorical penalty provisions, but clarifies that an employer may still be liable where an employee suffers individualized harm because the employer failed to follow the notification rules. The regulations do, however, provide an opportunity for retroactive designation of leave as FMLA leave.

Light Duty: §825.220
The final rule resolves a dispute amongst several federal appellate courts by clarifying two points: (1) Time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement; and (2) An employee’s right to restoration is held in abeyance during the period of time the employee performs light duty. Put simply, under the Final Rule, if an employee is voluntarily performing a light duty assignment, the time spent on light duty does not erode any time remaining under the 12-week leave entitlement and the employee’s job restoration rights are applicable once the employee completes the light duty assignment. Despite this clarification, the Final Rule also makes clear that an employee is not required to accept a light duty assignment if he or she is otherwise entitled to FMLA leave.

Waiver of Rights: §825.220
The Final Rule codifies a critical issue pertaining to settlement agreements and releases by clarifying employees may voluntarily settle or release their FMLA claims without court or DOL approval. This clarification is important because some courts had interpreted the DOL’s original regulations as prohibiting employees from either prospectively or retroactively waiving their rights. Under the Final Rule, while prospective waivers of FMLA rights continue to be prohibited, employers should carefully review the terms of their settlement agreements and releases associated with severance agreements and other documents to take advantage of this clarification.

Serious Health Condition: §825.115
The Final Rule provides three important clarifications pertaining to the definition of “serious health condition” under the FMLA that should help employers administer the Law’s leave provisions with greater confidence. The original regulations provided several different scenarios under which an employee’s condition might qualify as a “serious health condition.” One of these required more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider.” Under the Final Rule, the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within seven days of the first day of incapacity. A second way to satisfy the definition of serious health condition under the original regulations required the condition to require more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The Final Rule clarifies that the first visit to the health care provider must take place within seven days of the first day of incapacity. Under the original regulations, a chronic condition that required periodic treatments by a healthcare provider could also qualify as a serious health condition. Under the Final Rule, “periodic visits” means at least two visits to a health care provider per year.

Substitution of Paid Leave: §825.207
FMLA leave is unpaid, and the Law allows employees to take, or employers may require employees to take, any accrued paid vacation, personal, family or medical or sick leave, as offered by their employer, concurrently with any FMLA leave. The original regulations, however, applied different procedural requirements to the use of vacation or personal leave than to medical or sick leave. The Final Rule treats all forms of paid leave offered by an employer the same, regardless of the type of leave substituted (including generic “paid time off”). An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s leave policy being used concurrently as would apply to any other employee using the same leave type. If the employee fails to meet these terms and conditions, however, he or she is still entitled to unpaid FMLA leave. Additionally, the employer may waive any procedural requirements for taking any type of paid leave.

Perfect Attendance Awards: §825.215
Under the Final Rule, employers may deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way.

Employer Notice Obligations: §825.300
The Final Rule requires employers to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook and upon hire); an eligibility notice; a rights and responsibilities notice; and a designation notice. To facilitate this, appendices C, D, and E provide revised forms for employers to use in order to provide notice and obtain information necessary to confirm an employee’s need for the leave requested. Specifically, Appendix C provides employers with sample posting to inform employees of their rights under the FMLA. Appendices D and E replace the DOL’s old Form WH-381, and are designed to provide an employee with information regarding his or her eligibility under the FMLA, the employee’s corresponding responsibilities under the Law and the employer’s ultimate designation of the leave requested.  The Final Rule also extends the time for employers to provide various notices from two business days to five business days.

Employee Notice: §825.302
The Final Rule provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances. This change is intended to resolve ambiguities under the original regulations that had been interpreted to allow some employees to provide notice to an employer of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly. The Final Rule also highlights the consequences if an employee does not provide proper notice of his or her need for FMLA leave.

Medical Certification Process: §825.306
The Final Rule specifies that an employer representative contacting an employee’s health care provider must be a health care provider, human resource professional, leave administrator, or a management official, and in no case may it be the employee’s direct supervisor. Further, employers may not ask health care providers for additional information beyond that required by the certification form. However, an employer is not prohibited from seeking any information required to evaluate claims made under a worker’s compensation law, the Americans with Disabilities Act, a paid leave policy or a disability plan. Appendix B to the Final Rule is a revised Form WH-380, which includes separate forms to be used when an employee needs leave for his or her own serious health condition or when the leave is needed to care for a covered family member. The new form allows, but does not require, a health care provider to provide a diagnosis of the patient’s health condition as part of the certification. Under the Final Rule, if an employer deems a medical certification to be incomplete or insufficient, the employer must specify in writing what information is lacking, and give the employee seven calendar days to cure the deficiency.

Medical Certification Process: §825.308
The Final Rule confirms that employers may request a new medical certification each leave year for medical conditions that last longer than one year. It also clarifies the applicable time period for recertification. Under the original regulations, employers could generally request a recertification no more often than every 30 days, and only in conjunction with an FMLA absence unless a minimum duration of incapacity had been specified in the certification, in which case recertification generally could not be required until the duration specified had passed. This requirement created confusion regarding the employer’s ability to require recertification when the duration of a condition was listed as “lifetime” or “unknown.” The Final Rule addresses this issue by allowing an employer, in all cases, to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness-For-Duty Certifications: §825.312
The original regulations allowed employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. The Final Rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the job at issue. Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.

For further information, please contact Andrew B. Cripe, Aimee E. Delaney, Scott M. Gilbert, Clay M. Ullrick, or your regular Hinshaw attorney.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.