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Employers’ general notice obligations enhanced:
Under the final revised regulations, covered employers must
post a general FMLA notice even when they have no
FMLA-eligible employees. Employers that do not have an
employee handbook or similar written materials describing
benefits and leave must provide the general FMLA notice to
each employee when he or she is hired (rather than
annually, as was proposed). Where a workforce is
comprised of a significant portion of workers who are not
literate in English, the employer continues to be obligated
to provide general notice in a language in which the
employees are literate. Over the objections of some who
sent comments on the proposed rules, posting requirements
may be satisfied through an electronic posting, as long as
the posting otherwise meets the regulatory requirements.
Electronic-only posting is permitted where all employees and
applicants have access to electronic information. Paper
copies must be posted in locations readily visible to
employees who do not have access to company computers, and
to applicants who apply via non-electronic means.
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Employer-specific notice requirements modified:
The individual notice requirements under Section 825.301(b)
of the current regulations have been separated into two new
notice requirements or phases: “Eligibility/Rights and
Responsibilities” notice and “Designation” notice.
Consistent with these changes, the current optional Form
WH-381 (“Employer Response to Employee Request for FMLA
Leave”) will be replaced with two optional forms, one to
advise employees of their FMLA eligibility and rights and
the other to formally “designate” leave as FMLA leave.
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New
“eligibility notice” clarifies employee rights to leave:
When employees request FMLA leave, or when employers acquire
knowledge that an employee’s leave may be for an
FMLA-qualifying reason, employers must notify employees of
their eligibility to take FMLA leave within five business
days, absent extenuating circumstances. A new mandatory
WH-381 form replaces the existing optional Form WH-381, and
combines the written notice of “Rights and Responsibilities”
required by the regulations.
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Eligibility determination maintained for 12 months:
Employee eligibility is determined (and notice must be
provided) at the commencement of the first instance of leave
for each FMLA-qualifying reason in the applicable 12-month
period. All FMLA absences for the same qualifying reason
are considered a single leave and the employee maintains
eligibility as to that reason for leave throughout the
applicable 12-month period.
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New
“rights and responsibilities” form clarifies employee
expectations:
If
employees are eligible for FMLA leave, then at the time of
their eligibility notice they also must receive a written
notice of “Rights and Responsibilities” detailing the
specific expectations and obligations of employees and
explaining any consequences of their failure to meet these
obligations. Among other things, employers must inform
FMLA-eligible employees of any requirement to provide
medical certification, the right to substitute paid leave,
whether and how to pay premiums for continuing benefits, and
job restoration rights upon expiration of FMLA leave. This
notice may be accompanied by the FMLA medical certification
form if employers request employees to complete such forms.
The notice of rights and responsibilities may be distributed
electronically so long as it otherwise meets the
requirements of this section. These changes eliminate the
need to provide a “preliminary” or “provisional” designation
of FMLA leave. Instead, once the “Eligibility Notice” has
been provided, employers may delay actual designation until
five business days after they receive medical certifications
and any other required information.
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“Designation notice” confirms leave determinations:
Once an employer has obtained sufficient information to
determine whether an employee’s leave will be protected by
the FMLA, the employer must notify the employee within five
business days (a change from the current requirement of two
business days) that the leave is designated as FMLA leave,
absent extenuating circumstances. Of course, employers may
provide the “Eligibility” and “Designation” notices at the
same time, if they have sufficient information to do so.
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Retroactive designation permitted where no harm or injury is
caused:
The rule permits retroactive notice if the employer fails to
provide timely notice and the delay does not cause employee
harm or injury. In all cases where leave would qualify for
FMLA leave protection, employees and employer can mutually
agree that the leave be retroactively designated as FMLA
leave.
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Increased liability for failure to provide timely and
written notice of leave designation:
The final regulations clarify that failure to provide
required written notice can be considered “interference”
with employee’s FMLA rights. The regulations expand
potential damages available for interference claims,
including “any other relief tailored to the harm suffered.”
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New
and additional forms issued:
The
DOL has updated the optional forms provided to assist
employers in administering FMLA. It also has developed
forms to implement the new Military Family Leave
Amendments. The new list of optional FMLA forms include: 1)
WH-380E: New Certification of Health Care Provider for
Employee’s Serious Health Condition (Appendix B to the
regulations); 2) WH-380F: New Certification of Health Care
Provider for Family Member’s Serious Health Condition
(Appendix B to the regulations); 3) WH Publication 1420:
Notice to Employee of Rights Under FMLA (Appendix C to the
regulations); 4) WH-381: Notice of Eligibility and Rights
and Responsibilities (Appendix D to the regulations); 5)
WH-382: Designation Notice (Appendix E to the regulations);
6) WH-384: Certification of Qualifying Exigency for
Military Family Leave (Appendix G to the regulations); and
7) WH-385: Certification of Serious Injury or Illness of
Covered Servicemember for Military Family Leave (Appendix H
to the regulations).
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Different medical certifications for employee and family
members:
Recognizing that employers could benefit from having greater
insight into the reasons why employees could not perform
essential job functions, the DOL has created a new medical
certification form for use in evaluating the medical need
for leave prompted by an employee’s own serious health
condition. The DOL also created a separate medical
certification form for use when employees request leave to
care for a family member with a serious health condition.
This form seeks information on the type of care being
provided by employees.
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Employers can consider additional medical information
obtained through ADA, paid leave or workers’ compensation
procedures:
The regulations recognize an employee’s serious health
condition may also be a disability within the meaning of the
Americans with Disabilities Act (ADA) and may also trigger
requests for paid leave or workers’ compensation benefits.
Marking a major shift from the limited medical inquiries
permitted by the previous regulations, employers may now
follow procedures for requesting medical information under
the ADA or paid leave or workers’ compensation programs
without violating the FMLA. Moreover, employers may
consider any information received pursuant to such
procedures or benefit program in determining an employee’s
entitlement to FMLA-protected leave.
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Employers provided more time to request medical
certifications:
The regulations increases the time frame for requesting
certification from two to five days after employees give
notice of need for leave or, in the case of unforeseen
leave, the date employees commences leave.
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Employers must notify employees of certification
deficiencies:
The final rule adopts the proposed rule’s definitions of
incomplete and insufficient certifications and procedure for
curing these deficiencies. The rule requires employers to
notify employees in writing of the additional information
that is necessary to complete the medical certification and
allow employees seven calendar days to provide the
additional information. If employees fail to submit a
complete and sufficient certification despite the
opportunity to cure the deficiency, the employer may deny
FMLA leave.
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Upon
request, employees must provide FMLA medical certification
even when substituting paid leave:
The current FMLA regulations permit employees to comply with
a less stringent medical certification standard under the
employer’s sick leave plan when the employee substitutes any
form of paid leave for FMLA leave. The proposed rule
deleted this provision because it conflicted with the
employer’s statutory right (under 29 U.S.C. 2613) to
require, as a prerequisite to FMLA leave for a serious
health condition, that the employee provide a medical
certification to substantiate the serious health condition.
The final rule adopts the proposed rule.
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Employers can require new medical certification every new
leave year:
With the exception of certifications to support a request
for injured servicemember leave, the final rule allows for
annual medical certifications in cases where a serious
health condition extends beyond a single leave year.
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Medical recertifications permitted every six months:
The final rule allows employers to request medical
recertifications for continuing, open-ended conditions every
6 months, rather than after passage of the specified minimum
duration of the condition. Medical recertifications may be
requested on a more frequent basis if there were other
change circumstances or other reasons outlined in the
regulation.
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Fitness for duty certifications:
Employers may demand more than a “simple statement” of the
ability to return to work. Employers also may now ask for
fitness for duty certifications for intermittent leave if
reasonable safety concerns exist.
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Minimum increment of intermittent leave:
The employer must account for the intermittent or reduced
schedule leave using an increment no greater than the
shortest period of time that the employer uses to account
for use of other forms of leave provided it is not greater
than one hour. The final regulations clarify that employers
are not required to account for FMLA leave in increments of
six minutes or even fifteen minutes simply because their
payroll systems are capable of doing so.
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Exception to minimum increment of intermittent leave rules
for “physical impossibility:”
Where the nature of the workplaces makes it physically
impossible for employees to start work mid-way through the
shift, the entire shift may be designated as FMLA leave.
The DOL, however, intends the exception to be applied
narrowly and gives examples such as a flight attendant,
train conductor, or a laboratory technician whose workplace
is inside a “clean room” that must remain sealed for a
certain period of time.
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Calculation of leave when employee’s schedule varies:
The rule for calculating an employee’s leave entitlement
when an employee works a schedule that varies from
week-to-week will now use a weekly average over the 12
months preceding the leave period (rather than just the
prior 12 weeks as required under the current rule).
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Inability to work overtime protected by FMLA:
The DOL has clarified that missed overtime must be counted
against the employee’s FMLA leave entitlement if the
employee would otherwise have been required to report for
duty but for the taking of FMLA leave.
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Settlement of past FMLA claims now permitted:
Resolving a split in the United States Court of Appeals, the
final rule states that the FMLA’s waiver provisions apply
only to prospective FMLA rights; they do not prevent
employees from settling past FMLA claims without Department
or court approval. Employers should modify general releases
to include waiver of FMLA claims.
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Fuller explanation required of employees to trigger FMLA
protections:
Employees must explain sufficiently the reasons for leave so
as to allow the employer to determine whether the leave
qualifies under the Act. Calling in sick is not considered
a sufficient notice to trigger an employer’s FMLA
obligations. If employee fails to explain the reasons, leave
may be denied.
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Employees must specifically reference previously designated
FMLA leave:
When employees seek leave due to an FMLA-qualifying reason
for which employers have previously provided FMLA-protected
leave, employees must specifically reference the qualifying
reason for leave or the need for FMLA leave.
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Employees must comply with usual and customary procedures:
Employers may require that employees comply with usual and
customary notice and procedural requirements for requesting
leave, absent unusual circumstances. Requirements may
include providing written notice of the reasons and
anticipated start and duration of the leave or requirement
that employees contact a specific individual to request
leave. Examples of “unusual circumstances” referenced in
the regulations include: a) no one answered telephone number
employee called; b) company voice mail box is full; c)
employees are unable to use telephone because they are
seeking emergency medical treatment.
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FMLA’s application to professional employer organizations
addressed:
Recognizing PEOs provide services to employers that may not
include directing the work of their client’s employees
directly or jointly, the regulations clarify the test under
which PEOs will be considered joint employers. Referencing
comments prepared by Jackson Lewis, the regulation clarifies
that the decision will turn on the economic realities of the
relationship and will be based upon all the facts and
circumstances. A PEO is not a joint employer, the
regulation continues, if it simply performs administrative
functions, such as those related to payroll and benefits and
updating employment policies. Recognizing that some state
laws require PEO’s to reserve the right to hire and fire,
but that the PEO’s do not actually exercise that right, the
final rule states that “such rights may lead to a
determination that the PEO would be a joint employer with
the client employer, depending upon all the facts and
circumstances.” The final rule also notes that unlike the
case of traditional employment agencies, a PEO’s client
employer usually would be considered the primary employer in
a joint employment relationship with the PEO. The final
rule also adds a new sentence in § 825.106(d) to describe
how employees are counted toward FMLA coverage in the PEO
context.
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Parties must discuss and document FMLA disputes:
If there is a dispute between an employer and an employee as
to whether leave qualifies as FMLA leave, it should be
resolved through discussions between the employee and the
employer. The discussions and decision must be documented.
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Mutual agreement to supplement disability benefits through
use of paid leave:
Even though provisions covering the substitution of paid
leave for unpaid leave are not applicable when employees
receive disability benefits during FMLA leave, the employer
and employee may agree to run paid leave concurrently with
FMLA leave to supplement disability benefits. This also
applies to supplementing workers’ compensation benefits.
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Employers may require FMLA medical certification even when
paid leave is substituted:
Under current FMLA regulations, when an employer’s
procedural requirements for taking paid leave are less
stringent than the requirements of the FMLA, employees
cannot be required to comply with higher FMLA standards. The
DOL eliminated this provision. Employers may require
sufficient FMLA certification in support of any request for
FMLA leave for either the employee’s own or a covered family
member’s serious health condition.
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Employers may consider FMLA absences in determining bonuses
and other incentive rewards:
The final regulations modify the rules for perfect
attendance awards to allow employers to disqualify employees
from bonuses or other payments based on achievement of a
specified job-related performance goal (such as attendance)
where the employee has not met the goal due to FMLA leave,
so long as this is done in a nondiscriminatory manner.
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Time
spent performing light duty does not count toward FMLA
entitlement:
Under the current regulations, job restoration rights
arguably were available until 12 weeks have passed within
the 12-month period, including all FMLA leave taken and
any periods of light duty. The final FMLA regulations
clarify this issue, stating that an employee’s right to FMLA
leave and job restoration are not affected by light duty
assignments. Thus, the employee’s right to job restoration
is essentially on hold during the period of time an employee
performs a light duty assignment. At the conclusion of the
voluntary light duty assignment, the employee has the right
to be restored to the position the employee held at the time
the employee’s FMLA leave commenced or the employee may use
the remainder of his or her FMLA leave entitlement.
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Increased damages available for harm caused by interference
with FMLA rights:
The final FMLA regulations contain the remedy for
interfering with an employee’s rights under the FMLA.
Employers may be liable “for compensation and benefits lost
by reason of the violation, for other actual monetary losses
sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to
the harm suffered.”
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“Qualifying exigency”:
The DOL defined this term to include the following 8
situations: (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 to address other events which
arise out of the covered military member’s active duty or
call to active duty status, provided the employer and
employee agree that such leave shall qualify as an exigency,
and agree to both the timing and duration of such leave. A
new optional WH384 form has been adopted to allow employees
to self-certify the reasons support their claims of
qualifying exigencies.
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“Single 12 month period”:
The DOL determined that the most appropriate method for
establishing the “single 12-month period” for purposes of
military caregiver leave is a period that commences on the
date an employee first takes leave to care for a covered
service member with a serious injury or illness.
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“Next
of kin”:
The DOL prioritized the nearest blood relatives who may be
considered “next of kin of a covered servicemember” and
excluded the covered servicemember’s spouse, parent, son, or
daughter, as they already are entitled to leave for this
purpose. The regulations permit covered servicemembers
specifically to designate in writing another blood relative
as his or her nearest blood relative for purposes of
military caregiver leave under the FMLA. When no such
designation is made, and there are multiple family members
with the same level of relationship to the covered
servicemember, all such family members shall be considered
the covered servicemember’s next of kin and may take FMLA
leave to provide care to the covered servicemember, either
consecutively or simultaneously.
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Number of leaves to care for covered service members:
The DOL ruled that eligible employees could take more than
one period leave if the leave is to care for different
covered service members or to care for the same service
member with a subsequent serious injury or illness, except
that no more than 26 workweeks of leave may be taken within
any “single 12-month period.”
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No
overlapping of service member and family/medical leaves:
Leave that qualifies both as leave to care for a covered
service member and leave taken to care for a family member
with a serious health condition during the “single 12-month
period” cannot be designated and counted as both leave to
care for a covered service member and leave to care for a
family member with a serious health condition.
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Employee notice of qualifying exigency leave:
Employees are not obligated to provide notice to employers
when they first become aware of a covered family member’s
active duty or call to active duty status. The DOL believed
this was an unnecessary requirement because many employees
with a covered military member may never need to use
qualifying exigency leave. As a result, an employee’s
obligation to provide notice of leave due to a qualifying
exigency is triggered when the employee first seeks to take
such leave. Where this leave is foreseeable, eligible
employees must provide notice to the employer that is
“reasonable and practicable."
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Medical
certification for military caregiver leave established: The
DOL concluded that the certification requirements for taking
leave to care for a covered service member necessarily must
be different from those for taking leave to care for a
family member with a serious health condition because the
“triggers” for taking each type of leave are different. The
military family leave amendment’s definitions of “serious
injury or illness” and “covered service member” contain
specific components that are unique to military service
members that would not adequately be addressed if the
certification requirements for a serious health condition
were adopted for purposes of military caregiver leave.
Moreover, adopting the existing FMLA certification
requirements for purposes of military caregiver leave would
permit an employer, in some instances, to obtain medical and
other information that is not relevant to support a request
to take FMLA leave to care for a covered service member. At
the same time, citing to comments submitted by Jackson
Lewis, the DOL also agreed that a certification for military
caregiver leave should contain certain information about the
need for leave that is also required of individuals
requesting FMLA leave to care for a family member with a
serious health condition, such as the probable duration or
the injury/illness and the frequency and duration of the
leave. Accordingly, the final rule creates a new
regulatory section, § 825.310, which sets forth separate
certification requirements for military caregiver leave.
The DOL also created a new optional WH385 Form for use in
obtaining medical certifications of Military Caregiver
Leave.
