Department of Labor Publishes New FMLA Regulations
By Brooke A. Colaizzi and Andrew W. Volin
Nearly 15 years after the Family and Medical Leave Act (FMLA) was first enacted, and after long public comment periods, the Department of Labor (DOL) published its first significant revisions to its regulations on November 14, 2008. The new regulations go into effect on January 16, 2009.
The DOL reorganized and revised many of the existing regulations. It also added regulations implementing new FMLA leave entitlements to assist the families of Armed Services members created by the National Defense Authorization Act of 2008.
Leave administrators should take time to orient themselves to the new structure and provisions of the new regulations. Below are summaries of some of the most significant changes and additions:
Regulations Reorganized; New Format for Forms.
- The DOL reorganized the provisions of the regulations into a more coherent, logical, user-friendly structure. However, the result is that regulations that employers have commonly referred to are now in a different spot. For example, the regulation defining a "Serious Health Condition" expanded from 29 C.F.R. §§ 825.114 to 825.113 - .115, and the regulation explaining how to determine when an employee is not able to perform the functions of his or her position moved from 29 C.F.R. § 825.115 to § 825.123. Also, the DOL created a new set of approved forms, including a notice of rights, notice of eligibility, notice of designation of leave, and certification form for health care providers.
Notice Requirements for Employers and Employees Changed.
- Employers now have five business days to notify employees whether they are eligible for FMLA leave, and to designate leave as FMLA-qualifying. 29 C.F.R. § 825.300(b);(d).
- In the absence of unusual circumstances, employees must comply with their employers' normal call-in procedures when they are going to be absent from work. 29 C.F.R. §§ 825.302 - .303.
"Serious Health Condition" Expanded:
- One method of establishing a "serious health condition" now requires merely: (1) three consecutive calendar days of incapacity, and (2) two visits to a health care provider within thirty (30) days of the period of incapacity. 29 C.F.R. § 825.115(a)(1). This change greatly expands prior law in Colorado, because the Tenth Circuit previously interpreted the prior regulation as requiring the two visits to a health care provider to take place within the period of incapacity.
- The certification regulations have been revised to apply to all certifications, not just medical certifications. Employers may request a certification within five days of learning of the need for leave, and employees have fifteen (15) days to provide a requested certification. Employers can require annual certification for long-term conditions. An employer is required to notify an employee in writing of an incomplete or insufficient certification and give the employee seven (7) days to provide the additional information. 29 C.F.R. § 825.305.
- Sherman & Howard submitted comments to the DOL during the rulemaking process. In the comments accompanying the regulations, the DOL noted that Sherman & Howard supported permitting employers to give a list of essential functions to an employee taking FMLA leave and to require that a fitness-for-duty certification address those functions. DOL adopted this position in a new regulation, which is set forth at 29 C.F.R. § 825.123(b).
- The new regulations clarify that "light duty" does not count against an employee's FMLA leave entitlement, and the employee is entitled to job restoration at the end of the light duty period. 29 § C.F.R. 825.220(d).
Military Leave Due To A "Qualifying Exigency":
- An employee may take up to 12 weeks of leave for a "qualifying exigency" arising out of a son's, daughter's, spouse's, or parent's active duty in the Armed Forces. The exclusive "qualifying exigencies" are (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 relaxation; (7) post-deployment activities; and (8) additional activities agreed upon by the employer and employee. FMLA leave for rest and relaxation is limited to five days. 29 C.F.R. § 825.126.
Military Leave For Care Of An Injured Servicemember:
- The spouse, son or daughter (of any age), parent, or next of kin of a current member of the Armed Services with a serious illness or injury may take up to 26 weeks of leave in a single 12-month period to care for the servicemember. 29 C.F.R. § 825.127. "Next of kin" is defined to include grandparents, brothers and sisters, aunts and uncles, and first cousins, and a servicemember may designate in writing another blood relative as "next of kin" for purposes of FMLA leave. 29 C.F.R. § 825.122. Thus, the universe of individuals who may take leave to care for a servicemember is much larger than those who may take leave for other FMLA purposes.
- An individual taking FMLA leave to care for a servicemember is only entitled to one 26-week period per servicemember and per injury or illness. 29 C.F.R. § 825.127. However, multiple family members can qualify for the leave, and an individual may be entitled to additional 26-week periods of leave if the servicemember suffers subsequent independent illnesses or injuries. The 26-week entitlement is not "in addition to" an eligible employee's 12-week entitlement for other qualifying reasons. An employee is entitled to take up to 26 weeks of leave, 12 of which may be for a reason other than military caregiver leave. Any leave that would qualify both as military caregiver leave and leave for another qualifying reason is to be counted as military caregiver leave.
- The addition of military care leave to the FMLA will present, at least initially, a new administrative challenge for employers. An employee's entitlement to military caregiver leave is restricted to a "single 12-month period." That is, from the first day military caregiver leave is taken, an employee has twelve months to take the 26 weeks of leave, or the entitlement lapses for that particular serious illness or injury. The "single 12-month period" for military caregiver leave may not correspond to the 12-month period an employer utilizes for other FMLA leave. For employees taking military caregiver leave, two different 12-month periods may apply until the expiration of the "single 12-month period" for military caregiver leave.
Any Sherman & Howard labor and employment law attorney is available to help you and your organization adapt to, interpret, and apply the new regulations.
Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.
© 2008 Sherman & Howard L.L.C. December 1, 2008