The New FMLA Regulations

1
The New FMLA Regulations
Presented by Catherine E. Reuben and David B.
Wilson HIRSCH ROBERTS WEINSTEIN, LLP January 7,
2009
2
The Department of Labors Updated FMLA Regulations

• Effective January 16, 2009
• Based on
• Fifteen years of history enforcing the FMLA
• Court cases interpreting or invalidating the
  prior regulations
• Comments received in response to December 2006
  DOL Request for Information
• Passage of the National Defense Authorization Act
  (NDAA) providing two new types of military FMLA
  Leave

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Overview of First Changes to 15 year old law

• Clarified regulations to help combat FMLA abuse
• Gave new leave rights to military families
• To care for injured returning family service
  members
• To give relief to military reserve families
• Failed to adequately address problems with
  intermittent leave

4
FMLA Basics

• Passed in 1993
• Allows eligible employees to take up
• to 12 weeks of job protected leave for
• Birth, adoption or placement of a child
• Care of a spouse, son, daughter or parent with a
  serious health condition
• The employees own serious health condition that
  makes the employee unable to perform the
  functions of the employees job
• Applicable to private employers with 50 or more
  employees

5
NDAA adds two new types of leave

• Qualifying Exigency leave For a qualifying
  exigency arising out the fact that the
  employees spouse, son, daughter or parent is
  called to active duty in support of a contingency
  operation
• Military Caregiver Leave To care for a current
  member of the armed forces who has a serious
  injury or illness incurred in the line of duty

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Are you a covered employer?

• Private employers who have employed more than 50
  employees during 20 or more workweeks in the
  current or preceding calendar year
• Anyone on the payroll counts
• Public agencies
• Elementary and secondary schools, regardless of
  the number of employees

7
Are you a covered employer (cont.)

• The new regulations address issues related to
  joint employers
• In joint employment relationships, the primary
  employer is largely responsible for compliance
  with the FMLA
• Factors considered in determining who is primary
  include authority to hire, fire, assign, place
  and compensate the employee.
• For employees of temporary agencies, the agency
  is usually the primary employer
• For employees of Professional Employment
  Organizations (PEOs), the client company is
  usually the primary employer

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Is the employee eligible for FMLA leave?

• Worked for the employer for 12 months
• Military service counts
• Employment prior to a break in service of less
  than seven years counts
• Worked for 1250 hours in the past year
• Military service counts
• Employer has burden of proof
• The determination for both is made as of the
  date the FMLA leave is to start (i.e., employees
  can become eligible in the middle of a leave)

9
Is the employee eligible for FMLA leave (cont.)

• Is employed at a worksite where 50 or more
  employees are employed by the employer within 75
  miles of that worksite
• For telecommuting employees, the worksite is not
  the employees personal residence, but the office
  they report to and from which assignments are
  made
• For joint employers, the worksite is the primary
  employers worksite, unless the employee has
  worked at the secondary employers site for more
  than a year

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Is the leave for an FMLA-qualifying reason?

• Leave for birth/adoption/placement
• Expires 12 months after birth/placement/adoption
• No automatic right to intermittent leave for
  healthy child
• Leave to care for employees spouse, son/daughter
  or parent with a serious health condition
• Spouse is defined under state law
• In-laws are not included
• son/daughter must be under 18, or over 18 and
  incapable of self-care due to a disability
• The employer can require the employee to provide
  reasonable documentation of the family
  relationship
• The employee need not be the only person
  available to care for the family member

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Is the leave for an FMLA-qualifying reason (cont.)

• Leave due to the employees own serious health
  condition that makes the employee unable to
  perform the functions of the employees job
• The employer now has the option of providing the
  employee with a statement of the essential
  functions of the position, and requiring the
  health care provider to certify which of them the
  employee is unable to perform
• The new regulations provide more detail regarding
  what is a serious health condition

12
Is the leave for an FMLA-qualifying reason (cont.)

• Qualifying Exigency Leave
• The employees spouse, parent or son/daughter (of
  any age) is a called to active duty in support of
  a contingency operation
• Applies to National Guard and Reserves
• Does not apply to members of the regular armed
  forces or certain state calls to duty

13
Is the leave for an FMLA-qualifying reason
(cont.)

• Qualifying Exigencies
• Short-notice deployment (for orders to active
  duty within 7 days or less)
• Military events and related activities
• Childcare and school activities (but not everyday
  childcare)
• Financial and legal arrangements
• Counseling related to the call to active duty
• Rest and recuperation (up to 5 days)
• Post-deployment activities
• Additional activities as agreed with employer

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Is the leave for an FMLA-qualifying reason
(cont.)

• Military Caregiver Leave
• To care for current (not former) member of armed
  forced who has a serious injury or illness
  incurred in the line of duty
• Employee must be spouse, son/daughter, parent or
  next of kin of service member (not in-laws)

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How much leave can the employee take?

• For all but military caregiver leave 12 weeks
  during any 12-month period
• Employer can choose the method for determining
  the 12-month period, provided they do so
  consistently
• If the employer changes methods, must give 60
  days notice
• Holidays falling during a full week of leave
  count as FMLA leave. If the leave is less than a
  week, holidays do not count unless the employee
  was scheduled/expected to work the holiday.
• You cannot force an employee to take more FMLA
  leave than they actually need (limited exceptions
  for teachers)

16
How much leave can the employee take?

• Military Caregiver Leave
• 26 weeks of leave in a single 12-month period
  measured from the first day the employee takes
  leave, regardless of employers usual method
• The 26 weeks is applied on a per-service member
  per-injury basis, except that no more than 26
  workweeks can be taken in any single 12-month
  period
• Husbands and wives working for the same employer
  get a combined total of 26 workweeks of leave

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What Notice obligations do employers have?

• General Notice
• Poster
• In conspicuous place
• Must be posted even if no employees are eligible
• Written general notice
• Must have at least what is in the poster
• Included in handbook OR distributed to new
  employees on hiring
• For both, electronic notice is acceptable.
• For both, must provide in a language in which the
  employees are literate

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What Notice obligations do employers have?

• Eligibility Notice
• Use DOL Notice of Eligibility and Rights and
  Responsibilities Form
• Due 5 business days from date leave is requested,
  absent extenuating circumstances
• If the employees eligibility changes, the
  employer must notify the employee
• If the employee is not eligible, the employer
  must state why
• Eligibility notice can be oral or in writing, but
  must be translated

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What Notice obligations do employers have?

• Rights and Responsibilities Notice
• Use DOL Notice of Eligibility and Rights and
  Responsibilities Form
• Due at the same time as the eligibility notice
• Details the specific expectations and obligations
  of the employee and the consequences for failing
  to meet them

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What Notice obligations do employers have?

• Rights and Responsibilities Notice includes
• That the leave is designated and counted as FMLA
• Any certification requirements and the
  consequences of failing to provide them
• Employees right to substitute paid leave and any
  conditions related to it
• Any requirement that the employee make premium
  payments and the consequences of failing to do so
• Whether employee is a key employee
• The employees right to maintenance of benefits
• The employees right to job restoration
• The employees potential liability for payment of
  the employers share of premiums if the employee
  does not return
• Other information, such as whether the employer
  will require periodic reports of the employees
  status and intention to return

21
What Notice obligations do employers have?

• Designation Notice
• Use DOL form
• Due within 5 days of when the employer has enough
  information to determine whether the leave is
  FMLA-qualifying
• Includes
• Whether or not the leave is designated as FMLA
  and how much
• Whether the employer will require substitution of
  paid leave
• Whether a fitness for duty certificate will be
  required
• If the information changes, the employer must
  notify the employee
• Failure to designate can entitle an employee to
  damages, but not to leave that they would
  otherwise not be eligible to receive
• If there is a dispute over whether leave if
  FMLA-qualifying, the dispute should be resolved
  through discussions, which must be documented
• Retroactive designation is permitted if no
  injury/harm to employee

22
What notice obligations do employees have?

• 30 days advance notice for foreseeable leave
• If not foreseeable, notice as soon as practicable
• Employee is required to follow the employers
  usual and customary procedures for reporting an
  absence, absent unusual circumstances

23
Certifications

• Employer can require certifications for
• Employees own serious health condition
• Family members serious health condition
• Qualifying exigency
• Service members serious health condition
• Use the DOL forms

24
Certifications (cont.)

• Due within 15 calendar days unless not
  practicable
• Employer is required to advise the employee when
  a certification is incomplete and state in
  writing what additional information is needed.
  The employee then must be given 7 calendar days
  to cure the defect
• An employee can choose, but cannot be required,
  to comply with the certification requirement by
  giving the employer permission to talk directly
  to the health care provider

25
Certifications (cont.)

• An employer can request re-certification
• Every six months
• If employee requests an extension
• If circumstances change
• If the employer receives information casting
  doubt on the stated reason for the absence
• No second or third opinions are permitted for
  re-certifications
• No re-certifications allowed for military leave

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Certifications (cont.)

• Employers manager, HR professional or leave
  administrator (but not the immediate supervisor)
  can call the health care provider for
  authentication and clarification
• Provisions for second and third opinions do not
  apply to military caregiver leave

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Compensation and benefits during FMLA Leave

• Employee can choose, or employer can require,
  substitution of accrued paid time
• An employees ability to use accrued paid time is
  determined by the terms and conditions of the
  employers normal leave policy

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Compensation and benefits during FMLA leave

• Employer must maintain health benefits under the
  same terms and conditions as if the employee were
  continuously employed
• The Rights and Responsibilities Notice should
  address issues of payment of premiums and
  consequences for failing to do so
• Employees must be given a 30 day grace period to
  make payments, and 15 days notice before
  cancellation of benefits
• Even if coverage is cancelled due to non-payment
  of premiums, at the conclusion of the leave,
  coverage must be reinstated without any new
  conditions
• Under limited circumstances, and employer can
  recover its share of the premiums

29
The employees return to work

• Employers can require employees to report
  periodically on their status and intent to return
  to work
• Employers can require a fitness for duty
  certificate, but only if they give notice and
  provide a list of essential functions

30
The employees return to work

• Employee must be reinstated to the position they
  held or its equivalent. Must be virtually
  identical
• Employee must be reinstated even if the employee
  was replaced or the position was restructured to
  accommodate the leave
• Employees must get any unconditional pay
  increases or bonuses
• If a bonus or other payment is based on the
  achievement of a specified goal, such as hours
  worked, products sold or perfect attendance, and
  the employee has not met the goal due to FMLA, it
  can be denied unless offered to others on leave

31
The employees return to work (cont.)

• Reinstatement is not required if
• Key employee, with notice
• Employee would have lost the job even if they had
  not taken the leave. The employer has burden of
  proof
• Employee obtained leave fraudulently
• Employer has uniformly-applied policy barring
  outside employment during leave (but be careful)

32
Intermittent Leave

• For planned medical treatment, employee must
  consult with the employer and make a reasonable
  effort to schedule the treatment so as to not
  unduly disrupt the employers operation
• Provisions for temporary transfer to available
  alternate position, but only for foreseeable
  intermittent leave
• An employer cannot force an employee to take more
  leave than the employee needs (exception if its
  physically impossible for an employee to start or
  end mid-shift, e.g., flight attendant)

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Intermittent Leave (cont.)

• An employee cannot be forced to accept light
  duty.
• If an employee does accept light duty, time spent
  on light duty does not count as FMLA leave
• Can require a fitness for duty certificate every
  30 days if reasonable safety concerns exist

34
Enforcement and Protection

• Employers cannot discriminate, or interfere with
  FMLA rights. Interference includes manipulation
  to avoid coverage, changing essential functions
  to preclude leave, transfer to avoid the
  50-employee threshold or using FMLA as a negative
  factor in employment decisions.
• Corporate officers can be individually liable for
  violations
• Employees cannot waive prospective rights, but
  can waive claims based on past conduct without
  DOL or court approval
• Employees can file a complaint with DOL or go to
  court. Statute of limitations is 2 years (3 if
  willful)
• Broad range of damages

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Record-keeping Requirements

• Basic payroll data
• Dates/hours of FMLA leave
• All notices (medical ones stored separately and
  treated as confidential)
• Leave/benefits policies
• Records about disputes regarding the designation
  of leave

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Special Provisions for Schools

• Private and public elementary and secondary
  schools (not trade schools, pre-schools, colleges
  or universities)
• Special provisions for allowing a school to have
  an instructional employee stay out if the leave
  is at the end of a term

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So what do I do now?

• Obtain/review DOL forms and informational
  materials http//www.dol.gov/esa/whd/fmla/finalru
  le.htm
• Post the new poster
• Update your FMLA and related policies

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Policy Checklist

• 1. Make sure that your FMLA policy includes
  everything that is on the poster
• 2. How the leave year will be calculated
• 3. Whether employees must use accrued paid time
  during leave
• 4. Notice and procedural requirements for taking
  time off generally
• 5. Accrual and use of paid time off generally
• 6. Whether outside employment is permitted
  during any type of leave
• 7. That employees on any type of leave will be
  required to periodically report on their status
  and intent to return
• 8. That employees on any type of medical leave
  must submit a fitness-for-duty certificate before
  being permitted to return
• 9. That employees can be terminated for use of
  illegal drugs or alcohol
• 10. Whether coverage will be terminated
  retroactively for employees who fail to pay
  premiums

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Questions and Answers
?
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Contact Information
Catherine E. Reuben creuben_at_hrwlawyers.com (617)
348-4316 David B. Wilson dwilson_at_hrwlawyers.com (
617) 348-4314 www.hrwlawyers.com