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EMPLOYMENT NOTES

Summary of Amended FMLA Regulations

02.23.2009
The Department of Labor (“DOL”) issued its Final Amended Family Medical Leave Act (“FMLA”) Regulations effective January 16, 2009. The final amended FMLA regulations added rules to implement amendments made to the law by Congress in early 2008 to provide military family leave. The amendments expand FMLA entitlement to family members of military service personnel in two ways:
 
1. up to 12 weeks of leave for the spouse, son, daughter or parent of a service member due to qualifying “exigency” that arises because the service member is called to active duty or is notified of an impending call or order to active duty in the armed forces for a contingency operation; and
 
2. up to 26 weeks of leave for a spouse, son, daughter or next of kin to care for a service member who becomes seriously ill or is seriously injured while on active duty.

 See, 29 C.F.R. §§825.126, 825.127, 825.309 and 825.310.
 
The regulations define a qualifying exigency as: (1) a short-term 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 when the employer and employee agree to the leave. An eligible employee can take up to 12 weeks of FMLA leave, including intermittent or reduced schedule leave, for any of these purposes.
 
The regulations also define “active duty” (29 C.F.R. §825.800) and explain the types of active duty service that would trigger entitlement to exigency leave (29 C.F.R.§825.126(b)(2)). They make clear that these leave  provisions apply only to  members of the Reserves, National Guard, and certain retired members of the Regular Armed Forces and retired Reserves – not members of the regular Armed Forces on active duty status – and only to federal, not state, calls to active duty.
 
Other major revisions include the following:
 
Employer Notice Obligations – When employees request FMLA leave, employers must provide employees with notice within five business days of whether they are eligible for FMLA leave, and if not eligible, provide at least one reason for the ineligibility. After the employer has received sufficient information that the request for leave is FMLA-qualifying, it must designate the leave as such within five business days. The notice must inform the employee of how much time will be counted against his or her FMLA leave allotment and of other FMLA rights and responsibilities. Note that the CFRA eligibility notice requirement remains at two days, not five, and California employers must comply with the stricter requirement.
 
Employee Notice Obligations – When employees learn of a need for FMLA leave fewer than 30 days in advance, they are required to give notice of their need either the same business day or the next day, absent emergency situations. Also, if employees do not follow their employers’ call-in policies, they may be subject to disciplinary measures, absent  extraordinary circumstances.
 
Medical Certification – The DOL has split the recommended medical certification form into two parts: one for an employee’s own serious health condition and another for a family member’s serious health condition. The DOL also provides forms for an employee’s eligibility and designation of leave notice, as well as certifications for a qualifying exigency and for serious injury or illness of covered service members. Employers must give employees at least 15 days to provide the medical certification from the date of the employer’s request to do so.

An employer, but not the employee’s direct supervisor, may now contact an employee’s health care provider for clarifying and
verifying the  worker’s medical certification, if the employee is first given the opportunity to do so and the requirements of the Health Insurance Portability and Accountability Act have been met. If an employee fails to give consent to this contact, he or she may lose FMLA protection if his or her medical certification is incomplete or insufficient.
 
Nonconsecutive Periods of Service – Employers are required to count any service an employee had with an employer prior to a break in service of up to seven years toward his or her 12-month eligibility
.
Designation of Leave – The new regulations delete an original provision that stated that if employers did not designate FMLA-qualifying leave as FMLA, leave it would not count against an employee’s FMLA leave entitlement. Now an employer can be liable for not designating FMLA-qualifying leave only if the employee can demonstrate that he or she suffered actual harm.

Serious Health Condition – The new regulations clarify that if an employee takes leave for a medical condition involving more
than three consecutive calendar days of incapacity and needs to have two visits to a health care provider, those visits must occur within 30 days of the period of incapacity for the condition to be classified as a serious health condition. Also, for a chronic serious health condition to be present, an employee must make at least two visits per year to a health care provider.
 
Light Duty – The rules clarify that time spent in a light-duty capacity does not count against an employee’s FMLA leave allotment. An employee may stay in that light-duty position until his or her FMLA 12-month leave year ends, at which time the employee loses his or her restoration rights.
 
Waiver of Rights – The rules clarify that an employee can voluntarily settle past FMLA claims without court or departmental approval. An employee’s waiver of prospective FMLA rights is prohibited.
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