At the beginning of this year, the U.S. Department of Labor (“DOL”) issued important new regulations regarding the Family & Medical Leave Act (“FMLA”). The new regulations changed several areas of the FMLA regulations, including the definition of “serious health condition,” employer and employee notice obligations, and certification procedures. The new regulations also address the National Defense Authorization Act (“NDAA”) creating two new entitlements to FMLA leave. Recently, President Obama signed the 2010 National Defense Authorization Act (“2010 NDAA”) that further expands FMLA military leave benefits. The 2010 NDAA expands coverage to family members of active duty members of the Armed Forces. As 2009 comes to a close, all employers should review their policies to make sure they are compliant with the new regulations, the NDAA, and the 2010 NDAA.

Changes Under the New FMLA Regulations
The DOL issued new FMLA regulations in January of 2009 of which every employer should be aware:
“Serious Health Condition” Clarified

The previous FMLA regulations contained six definitions of “serious health condition.” The new FMLA regulations retain these six definitions of “serious health condition,” and go on to clarify three issues:

• One definition of “serious health condition” requires more than three consecutive, full calendar days of incapacity plus two visits to a health care provider. The new regulations clarify that the two visits to a health care provider 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.
• Another definition of “serious health condition” requires more than three consecutive, full calendar days of incapacity plus a continued regimen of continuing treatment. The new regulations clarify that the first visit to the health care provider must occur within seven days of of the first day of incapacity.
• The new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a health care provider each year.

Employer Notice Obligations Revised and Expanded
In the new FMLA regulations, the DOL has consolidated all of the employer’s notice obligations into one section, 29 C.F.R. § 825.300. It appears that the DOL intended to strengthen the employer’s notice obligations, and the new regulations require the following notices from employers:

• New FMLA Poster. Employers must post this notice prominently, in a conspicuous place for employees and applicants to read, with easy-to-read text at each worksite, regardless of whether or not the employees at that worksite are eligible for FMLA leave. The new poster, WH Publication 1420, is available from the DOL by clicking here. This general notice requirement may be satisfied by electronically posting the new FMLA poster, as long as the employer posts the notice in a conspicuous place for employees and applicants to read, with easy-to-read text at each worksite.
• Employee Handbook Disclosures. If an employer publishes an employee handbook or other employee rules or guidance regarding benefits or leave rights, the employer must include, at the very least, the information contained in the new FMLA poster. If a significant portion of the employer’s work force cannot read English, the employer must provide this information in a language the employees can read. If an employer does not publish a handbook or any other written policies on benefits or leave rights, the employer must issue a copy of the new FMLA poster to each new employee upon hiring.
• Notice of Eligibility and Rights and Responsibilities. When the employee requests FMLA leave, or when the employer becomes aware that leave may qualify under the FMLA, the employer must notify the employee within five business days of: (a) the employee’s eligibility under the statutory requirements of the FMLA, and if the employer determines that the employee is ineligible, the employer must provide at least one reason for the ineligibility; (b) the employer’s expectations and obligations regarding FMLA leave (e.g., whether the employer requires medical certification, arranging payment for healthcare premiums during the employee’s absence, etc.). A model Notice of Eligibility and Rights and Responsibilities form, Form WH-381, is available from the DOL by clicking here. The employer may provide the employee with the medical certification form at the same time it provides the employee with the Notice of Eligibility and Rights and Responsibilities.
• Designation Notice. When the employer has enough information to determine whether an employee’s leave qualifies as FMLA leave, the employer must inform the employee whether the leave will be deemed FMLA leave or not, within five business days. If the leave does qualify for FMLA leave, the employer must specify the amount of leave that will be counted against the employee’s total FMLA leave, if possible. A model Designation Notice, Form WH-382, is available from the DOL by clicking here.
• Employee Notice Obligations Revised. Under the new DOL regulations, the employee requesting FMLA leave must follow the employer’s usual and customary call-in procedures, absent unusual circumstances. If an employee fails to follow the employer’s call-in procedures, and no unusual circumstances exist, the employer may delay or deny FMLA leave, and the employer may take appropriate disciplinary action consistent with its internal policies.

Certification Procedures Revised and Clarified
The new DOL regulations provide that if the employer finds a deficiency in the medical certification received from the employee or his/her health care provider, the employer must inform the employee of the deficiencies in writing. The employee then has seven calendar days to cure the deficiency. The new rules also allow the employer representative to contact the employee’s healthcare provider directly to cure deficiencies in the certification. An “employer representative” can be a healthcare provider, a human resources professional, a leave administrator or a management official, but cannot be the employee’s direct supervisor. Employers may not ask the employee’s healthcare provider for additional information beyond the information required in the certification.

The new DOL regulations also clarify the FMLA certification procedures. The new rules make clear that employers may request a new medical certification each leave year for medical conditions that last longer than one year, such as chronic conditions. The current DOL regulations employers may 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 has been specified in the certification, in which case recertification generally may not be required until the duration specified has passed. The new DOL rules clarify that employers may require recertification of an ongoing medical condition every 6 months in conjunction with an absence. The regulations further provide that employers may require the fitness-for-duty return to work certification to address whether the employee is able to perform his or her essential job functions, as long as the employer provides the employee with a list of these essential functions no later than with the Designation Notice, and the employer specifies in the Designation Notice that the fitness-for-duty certification must address the employee’s ability to perform these essential functions.

Other Miscellaneous FMLA Provisions Revised

The new DOL regulations contain a few additional changes and clarifications, including:

• Light Duty. The new rules clarify that time spent by an FMLA-qualifying employee voluntarily performing light duty work for an employer following FMLA leave does not count against that employee’s 12-week FMLA leave entitlement.
• Perfect Attendance. The new rules allow employers to deny an employee who takes FMLA leave a “perfect attendance” award, as long as the employer treats all employees taking FMLA leave in the same manner.
• Retroactive Waivers. The new rules clarify that an employee may voluntarily settle or release their FMLA claims without court or DOL approval. Prospective waivers of FMLA rights are still prohibited under the rules.

New Military Family Leave Entitlements under the NDAA
Section 585(a) of the National Defense Authorization Act (“NDAA”) amended the FMLA to provide two new leave entitlements: (1) Military Caregiver Leave (or Covered Servicemenber Leave) and (2) Qualifying Exigency Leave.

Who is Covered?
The NDAA provides new rights to family members of covered servicemembers for leave due to a qualifying exigency. Originally, the NDAA limited availability of FMLA leave for a qualifying exigency to only those family members of the National Guard, Reserves, or retired members of the Armed Forces or Reserve. As discussed below, however, with passage of the 2010 NDAA, family members are now entitled to FMLA leave for a qualified exigency for servicemembers serving with the Armed Forces, as well as for veterans in the Armed Forces (including the National Guard and Reserves).

Military Caregiver Leave (or Covered Servicemember Leave)
Under the new Military Caregiver Leave, eligible employees who are family members of covered servicemembers may 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 or active duty. The 12-month period used for computing military caregiver leave begins on the first day the employee takes leave for this purpose and ends 12 months thereafter. Military caregiver leave entitlement applies on a per-covered servicemember, per-injury basis.

Qualifying Exigency Leave
Qualifying exigency leave allows eligible employees with a spouse, child, or parent on active duty or called to active duty in the National Guard or Reserves in support of a contingency operation to take up to the normal 12 weeks of leave for any qualifying exigency. A “qualifying exigency” includes: (a) short-notice deployment; (b) military events and related activities; (c) childcare and school activities; (d) financial and legal arrangements; (e) counseling; (f) rest and recuperation; (g) post-deployment activities; (h) additional activities not encompassed in the other categories, but agreed to by the employer and employee.
The DOL developed two new certification forms for Military Caregiver Leave and Qualified Exigency Leave (Forms WH-384 and WH-385). To obtain Form WH-384, click here. To obtain form WH-385, click here.

New FMLA Coverage for Military Families Under the 2010 NDAA

Expansion to Cover Armed Forces
While the NDAA provides coverage to family members of servicemembers in the Reserves or National Guard, the 2010 National Defense Authorization Act (“2010 NDAA”) extends FMLA coverage for a qualifying exigency to family members of servicemembers of the Armed Forces.

Coverage for Families of Veterans
The 2010 NDAA also provides for a family member’s need to take time off to care for a veteran in the Reserves, National Guard, or Armed Forces. Family members are eligible under the 2010 NDAA for up to 26 weeks of leave to care for a veteran undergoing treatment for a serious illness or injury who were servicemembers of the Reserves, National Guard, or Armed Forces at any time during the five-year period before the date of treatment.

Compliance Tips for Employers
With the new changes to the DOL regulations concerning FMLA leave, as well as the recent enactment of the NDAA and the 2010 NDAA, employers should take the following steps to ensure compliance with the FMLA:

• Update your FMLA policy to be consistent with the new regulations;
• Update your FMLA policy to include the new rights for families of military servicemembers and veterans;
• Post the new FMLA poster in a conspicuous location;
• Obtain and update the revised FMLA forms available from the DOL;
• Train your management team about the new FMLA procedures; and
• Distribute the revised FMLA policy to employees.

If you have question’s about your company’s FMLA policies, or you would like assistance updating your FMLA policy or other compliance materials, please contact one of the employment law attorneys at Trepanier MacGillis Battina P.A.
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Featured Attorney:
Minnesota employment law attorney Craig W. Trepanier practices extensively in the field of employment law and routinely advises clients, both employers and employees, on issues related to employer FMLA policies. Craig can be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.