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Recent Changes Affect Employer and Employee Obligations
Under the FMLA
By Bruce W. Padula |
The Family and Medical Leave Act of
1993 (“FMLA”) permits eligible employees up to twelve (12) weeks
unpaid leave due to a serious health condition that makes the
employee unable to perform his job or to care for a sick family
member or to care for a new son or daughter (including by birth,
adoption or foster care). The leave guaranteed by the FMLA is
unpaid, and is available to those working for employers with 50 or
more employees within a 75 mile radius. In addition, an employee
must have worked for the company at least 12 months and 1,250 hours
in the preceding 12 months. Effective January 16, 2009, the United
States Department of Labor adopted new rules regarding the
implementation and interpretation of the FMLA. Highlights of these
changes are outlined below:
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Military Caregiver Leave (also
known as Covered Servicemember Leave): Under the first of
these new military family leave entitlements, eligible
employees who are family members of covered servicemembers
will be able to take up to 26 workweeks of leave in a
“single 12-month period” to care for a covered servicemember
with a serious illness or injury incurred in the line of
duty on active duty. This 26 workweek entitlement is a
special provision that extends FMLA job-protected leave
beyond the normal 12 weeks of FMLA leave. This provision
also extends FMLA protection to additional family members
(i.e., next of kin) beyond those who may take FMLA leave for
other qualifying reasons.
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Qualifying Exigency Leave: The
second new military leave entitlement helps 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. This provision makes the normal 12
workweeks of FMLA job-protected leave available to eligible
employees with a covered military member serving in the
National Guard or Reserves to use for “any qualifying
exigency” arising out of the fact that a covered military
member is on active duty or called to active duty status.
The Department’s 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.
The regulations also includes two new
certification forms that may be used by employees and employers to
facilitate the certification requirements for the use of military
family leave.
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Employer Notice Obligations:
The final rule consolidates all the employer notice requirements
into a “one-stop” section of the regulations and reconciles some
conflicting provisions and time periods under the current
regulations. Further, the final rule clarifies and strengthens
the employer notice requirements in order to better inform
employees and allow for a better exchange of information between
employers and employees. Employers will be required to provide
employees with a general notice about the FMLA (through a
poster, and either an employee handbook or upon hire); an
eligibility notice; a rights and responsibilities notice; and a
designation notice. In order to ensure employers are able to
better inform employees under the new notice provisions, the
final rule extends the time for employers to provide various
notices from two business days to five business days.
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Employee Notice: The
final rule modifies the current provision that has 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. Lack of advance notice (e.g., before the employee’s
shift starts) for unscheduled absences is one of the biggest
disruptions employers point to as an unintended consequence of
the current regulations. 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. The final rule also highlights (without
changing) the existing consequences if an employee does not
provide proper notice of his or her need for FMLA leave.
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The Ragsdale Decision:
The final rule includes a number of technical regulatory changes
to reflect current law following the U.S. Supreme Court’s
decision in Ragsdale v. Wolverine World Wide, Inc., which
invalidated a penalty provision of the regulations. Ragsdale
ruled that the current regulation’s “categorical” penalty for
failure to appropriately designate FMLA leave, which in that
case would have required the employer to provide an additional
12 weeks of FMLA-protected leave after the 30 weeks of leave the
employee had already received, 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. The final rule therefore removes
these categorical penalty provisions and clarifies that where an
employee suffers individualized harm because the employer failed
to follow the notification rules, the employer may be liable.
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Light Duty: Under
the final rule time spent performing “light duty” work does not
count against an employee’s FMLA leave entitlement and that the
employee’s right to restoration is held in abeyance during the
period of time the employee performs light duty (or until the
end of the applicable 12-month FMLA leave year). If an employee
is voluntarily performing a light duty assignment, the employee
is not on FMLA leave.
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Waiver of Rights:
The final rule codifies the Department’s longstanding position
that employees may voluntarily settle or release their FMLA
claims without court or Department approval. Prospective waivers
of FMLA rights continue to be prohibited under the final rule.
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Serious Health Condition:
The final rule retains the six individual definitions of serious
health condition while adding guidance on three regulatory
matters. One of the definitions of serious health condition
involves 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 current regulations involves
more than three consecutive, full calendar days of incapacity plus a
regimen of continuing treatment. The final rule clarifies here also
that the first visit to the health care provider must take place
within seven days of the first day of incapacity.
Thirdly, the final rule defines
“periodic visits” for chronic serious health conditions as at least
two visits to a health care provider per year since that provision
is also open-ended in the current regulations and potentially
subjects employees to more stringent requirements by employers.
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Fitness-For-Duty
Certifications: The current FMLA regulations allow
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. This
is called a “fitness-for-duty” certification. 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 employee’s job. 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.
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Substitution of Paid Leave:
FMLA leave is unpaid. However, the statute provides that
employees may 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. This is called the “substitution of paid leave.” Under
the final rule, all forms of paid leave offered by an employer
will be treated 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 policy that apply to other employees for the use of
such leave. The employee is always entitled to unpaid FMLA leave
if he or she does not meet the employer’s conditions for taking
paid leave and the employer may waive any procedural
requirements for the taking of any type of paid leave.
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Perfect Attendance Awards:
The final rule changes the treatment of perfect attendance
awards to allow employers to 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. This addresses the unfairness
perceived by employees and employers as a result of requiring an
employee to obtain a perfect attendance award for a period
during which the employee was absent from the workplace on FMLA
leave.
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Certification of Health Care
Provider: The final rule, requires that the employer’s
representative contacting the health care provider must be a
health care provider, human resource professional, a leave
administrator, or a management official, but 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. The final rule also improves
the exchange of medical information by updating the Department’s
optional Form WH-380 to create separate forms for the employee
and covered family members and by allowing—but not
requiring—health care providers to provide a diagnosis of the
patient’s health condition as part of the certification.
In addition, the final rule specifies
that 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. These changes will improve FMLA communications,
protect the privacy of workers, and help ensure that the employees
who need leave will get it and not be subject to repeated requests
for additional information or be denied FMLA leave on a
technicality.
The final rule permits employers to
request a new medical certification each leave year for medical
conditions that last longer than one year. The final rule also
clarifies the applicable time period for recertification. Under the
current regulations, employers may generally request a
recertification no more often than every 30 days. In all cases, the
final rule allows an employer to request recertification of an
ongoing condition every six months in conjunction with an absence.
Implementation and application of the
FMLA and the New Jersey Family Leave Act (“NJFLA”) is fact sensitive
and often complicated. We recommend seeking legal advice prior to
implementing any FMLA policies or designating leave as FMLA or NJFLA
leave.
This Scarinci Hollenbeck Client
Alert has been prepared for the general information of clients and
friends of the firm. It is not meant to provide legal advice with
respect to any specific matter and should not be acted upon without
professional counsel.
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