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DOL Revises Family Leave Regulations
Friday, May 29, 2009

The U.S. Department of Labor (the “DOL”) recently issued revised regulations interpreting the Family and Medical Leave Act of 1993, as amended, 29 C.F.R. §825.100 et seq. (the “FMLA”). Highlights of the revised regulations, effective January 16, 2009, are set forth below.

The FMLA generally entitles eligible employees to up to twelve weeks of leave in any twelve-month period: (1) when the employee is unable to work because of a serious health condition; (2) to care for a newborn or newly adopted child; or (3) to care for an immediate family member with a serious health condition. As addressed below, the FMLA also provides leave for family member of certain military personnel.
Employer Notice Requirements
The revised regulations contain four different notice requirements intended to improve the exchange of information between employers and employees. First, covered employers must conspicuously post a general FMLA notice even if no employees are eligible for FMLA leave. The notice may be posted electronically, as long as employees have access to it. If an employer has even one eligible employee, this general notice must also be published in the employee handbook or other written benefits communication or, if no such materials exist, given to new employees upon hire.
Second, the revised regulations place the burden of communicating employee eligibility for FMLA leave on the employer. However, employers now have an extended period of five (instead of two) business days from the date the employer becomes aware of the need for leave to communicate eligibility information.
Third, employers must provide employees with a Notice of Rights and Responsibilities (along with an Eligibility Notice) to inform them of their obligations while on FMLA leave.
Fourth, once an employer has sufficient information to determine that an employee’s leave is protected by the FMLA, it must notify the employee that the leave is being designated as FMLA leave. This Designation Notice must now be in writing and, absent extenuating circumstances, provided within five business days of the employer’s knowledge that such leave is FMLA qualifying.
Medical Certification Deficiencies
An employer may generally require employees to provide a certification from their health care providers to support their need for leave due to a serious health condition. If the certification is incomplete or insufficient, the new regulations require employers to notify employees in writing of the additional information that is needed and allow employees seven days to provide it. If the employer still has questions, it may contact the employee’s health care provider.
Under the revised regulations, an employer’s human resources professional, leave administrator, or management official may directly contact the employee’s health care provider about information on the certification form. However, the revised regulations expressly prohibit the employee’s direct supervisor from contacting the health care provider. Employers are also still prohibited from seeking additional information beyond what is permitted in the certification form.
Intermittent Leave or Reduced Leave Schedule
The revised regulations clarify that an employee who takes intermittent leave for a planned medical treatment must make a “reasonable effort” (as opposed to an “attempt”) to schedule the treatment so as not to unduly disrupt the employer’s operations. Even though it may not always be possible, “employees must try to arrange treatment on a schedule that accommodates the employer’s needs.”
Light Duty
The revised regulations clarify that an employee’s work in a voluntary, light-duty assignment while recovering from a serious health condition does not waive the employee’s FMLA rights, including the right to be restored to his or her former position (or an equivalent position) at the end of the FMLA period.
Employee’s Failure to Provide Timely Notice
If an employee fails – with no reasonable excuse – to give thirty days’ notice of foreseeable leave, the employer may delay FMLA coverage until thirty days after the initial notice. If the employee fails to give notice as soon as practicable under the circumstances for unforeseeable leave, or when less than thirty-days’ notice is required for foreseeable leave, the extent to which the employer may delay the FMLA protected leave depends on the circumstances.
Military Family Leave
New regulations address the FMLA’s recent expansion to family members caring for a “covered service member” with a serious injury or illness incurred in the “line of duty on active duty.” Family members may take up to twenty-six workweeks of leave in a twelve-month period. Family members of personnel on active duty may also take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment; (2) military events; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities agreed upon by the employer and employee. Exigent Circumstances Leave extends only to covered military members called to active duty as part of contingency operations, such as members of the Reserves and National Guard, and not to individuals in the Regular Armed Forces.
New Forms
The DOL has several new sample FMLA forms for employers, including health care certifications, notices of eligibility, and forms covering exigent circumstances and service member leave. They are available at: www.dol.gov/esa/whd/fmla/finalrule.
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