The U.S. Department of Labor has issued new regulations under the Family and Medical Leave Act ("FMLA"), which just became effective on January 16 of this year. This is the first significant regulatory update to the FMLA since it became law in 1993. Administering employee leaves has become an increasingly confusing area for employers, and the goal of these revisions is to clarify leave procedures under the FMLA. But the revisions are extensive and detailed, and in the words of an attorney for Community Legal Services, "If you think you know all about the FMLA and you haven't read the new regulations, you really don't know about the FMLA anymore."
Although a full discussion of the revisions would exceed the scope of this e-Alert, below are five key points employers should understand:
1. Military Caregiver Leave / "Qualifying Exigency" Leave. The FMLA now implements certain provisions of the National Defense Authorization Act ("NDAA") by providing two new leave entitlements relating to families of military members:
a. Under so-called "Military Caregiver" leave, qualified employees are entitled to up to 26 weeks of unpaid leave in a 12-month period to care for a family member or "next-of-kin" injured in the line of duty. (The definition of "next-of-kin" now includes siblings and grandparents, opening up a new group of family members for whose care an employee may be eligible to take leave.) Significantly, the 12-month period cannot be calculated on a calendar-year method, but begins at the commencement of the employee's leave. The FMLA allows employees to take 26 weeks off to care for each injured service member and for each service-related injury.
b. "Qualifying Exigency" leave applies to the spouse, son, daughter or parent of a Reserve, retired or National Guard service member who is on active duty or has been notified of an impending call to active duty in connection with a "contingency operation." Family members may take up to 12 weeks of unpaid leave in a 12-month period for "qualifying exigencies," including: short-notice deployment; military events or related activities; necessary child care and school activities; to make or update financial or legal arrangements; to obtain counseling; to engage in "rest and recuperation" with a covered military family member on leave; and to engage in post-deployment activities.
2. "Serious Health Condition" Further Defined. What qualifies as a "serious health condition" under the FMLA has been the subject of much uncertainty. The new rules attempt to reduce that uncertainty by providing that a sick or injured worker seeking leave on the basis of three days of incapacity to work must obtain medical treatment (visit a health practitioner, as defined in the Act) within seven days of the injury or onset of illness, and must have a second visit within three weeks (so that both visits occur within thirty days of the commencement of the employee's incapacity). To qualify for leave on the basis of a "chronic" serious health condition, the employee must make at least two annual visits to a health care provider.
3. Change to Medical Certification Requirement. In a major change from prior law, the new federal rules allow certain representatives of the employer (but not the affected employee's direct supervisor) to contact the health care provider directly to obtain information related to an employee's eligibility for FMLA leave. Although the list of employer representatives who may contact the health care provider has expanded, the employer still cannot seek information beyond that permitted by the FMLA medical certification forms. (We mention "forms" in the plural because the new regulations also provide for two different certification forms – one for employees, and a different one for family members.) There are many "ifs, ands, and buts" to this right, however, so employers should make sure they are clear on the scope of this change before contacting any of the employee's health care professionals, to ensure that the employer does not unwittingly violate the employee's privacy rights. Significantly, employers cannot require a medical diagnosis under the FMLA without the employee's consent. (Moreover, California employers also must always bear in mind the provisions of the California Family Rights Act, under which the details of the employee's or family member's serious health condition cannot be inquired into by the employer. This distinction has been a trap for the unwary for many out-of-state employers.)
4. Revised Notice Requirements. Employers now have five business days after an employee's leave request (not just two) to provide employees with a general notice about the FMLA, including eligibility notice and a notice of rights and responsibilities. In addition, employers may now require employees requesting FMLA leave to comply with the employer's standard policies for reporting an absence. Employers subject to the FMLA must post a new FMLA Notice Poster.
5. Existing FMLA Claims Can Be Waived. Although prospective rights may not be waived, the new rules permit employees to settle or release their existing FMLA claims without going through the burdensome and time-consuming process of first obtaining court or agency approval. This will significantly simplify private settlements in employment disputes involving FMLA leave, and employers should include an explicit release of existing FMLA claims in its settlement agreements with employees.
The new FMLA regulations have many other noteworthy elements that exceed the scope of this summary. For instance, the new regulations allow employers to require fitness-for-duty certifications under certain circumstances; clarify the administration of "intermittent leave;" provide that "light duty" does not count as FMLA leave; and permit employees to substitute paid leave for unpaid leave during the 12-week FMLA period, as long as the employee complies with the employer's paid-leave policies. If clients have any questions about the new regulations or their application in your particular circumstances, please feel free to contact any member of Rutan's Employment Department.