On January 16, 2009, new regulations took effect that govern the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The new regulations include the amendments made by the National Defense Authorization Act, which was signed into law in January 2008. The new regulations are the first since the regulations became effective in 1995. While a detailed analysis of the 750+ pages of new regulations requires much more than a newsletter article, the following provides a quick summary of notable changes to employee and employer rights and responsibilities under the FMLA.
Employee Rights And Responsibilities
Qualifying Exigency Leave: Take up to 12 weeks of leave in a 12-month period for qualifying exigencies arising out of a covered military member's active duty status. "Qualifying exigencies" include: short notice deployments, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and other events that arise out of the covered military member's active duty or call to active duty. 29 C.F.R. § 825.126.
Military Caregiver Leave: Take up to 26 weeks of leave in a single 12-month period to care for a covered servicemember recovering from a serious injury or illness incurred in the line of duty on active duty. 29 C.F.R. § 825.127.
Timely Notice of Need for Leave: The employee must provide 30 days' notice if the leave is foreseeable. 29 C.F.R. § 825.302. If the need for leave is unforeseeable, the employee should provide notice of the need for leave "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a).
Type of Notice: The employee must provide the employer "sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request." The employee does not need to expressly mention the FMLA unless the employee has previously taken leave for the same qualifying reason. 29 C.F.R. § 825.303(b).
Answer Employer's Questions: An employee has an obligation to respond to an employer's inquiries regarding the leave request. 29 C.F.R. § 825.303(b).
Medical Certification: If the employer requires a medical certification, the employee is required to return the form within 15 calendar days regardless of whether the leave is foreseeable or unforeseeable. 29 C.F.R. § 825.305(b).
Cure Certification Deficiencies: An employee must cure any deficiencies in the medical certification within seven calendar days. 29 C.F.R. § 825.305(c).
Recertifications: If requested by the employer, provide a medical recertification every six months or sooner if there is a change in circumstances. 29 C.F.R. § 825.308(b).
HIPAA Clarification: Provide HIPAA consent for employer to authenticate or clarify medical certifications or the employer may deny FMLA leave. 29 C.F.R. § 825.307(a).
Qualifying Exigency Certification: Provide active duty orders or other documentation issued by the military. 29 C.F.R. § 825.309(a).
Notice of Return to Work: Employees may be required to provide notice to the employer of intent to return to work. 29 C.F.R. § 825.311(a).
Fitness for Duty Certifications: Employee may be required to submit to a fitness for duty certification to address whether the employee can perform the essential functions of the job. 29 C.F.R. § 825.312(b).
EMPLOYER RIGHTS AND RESPONSIBILITIES
General Notice to Employees of FMLA Provisions: Post general notice explaining the FMLA's provisions. 29 C.F.R. § 825.300(a). Provide general notice to each employee in handbook or other written materials. 29 C.F.R. § 825.300(a).
Eligibility Notice to Employees Who Request Leave: Once an employer becomes aware an employee's leave may be for an FMLA-qualifying reason, notify the employee of his eligibility to take leave within five business days. 29 C.F.R. § 825.300(b).
Rights and Responsibilities Notice to Eligible Employees: Provide written notice of the employee's expectations and obligations concerning leave. 29 C.F.R. § 825.300(c).
Designation Notice: The new regulations increase the amount of time an employer has to designate leave as FMLA leave from two to five business days. 29 C.F.R. § 825.300(d).
Retroactive Designation: An employer may retroactively designate FMLA leave, provided the failure to timely designate the FMLA leave does not cause harm or injury to the employee. An employer and employee may also mutually agree that the leave is designated retroactively. 29 C.F.R. § 825.301(d).
Timely Request for Certification: The new regulations increase the amount of time an employer has to request a certification from two to five business days. 29 C.F.R. § 825.305(b).
Direct Contact with Health Care Provider: An employer's health care provider, human resource professional, leave administrator or management official may contact the employee's health care provider for authentication and clarification. 29 C.F.R. § 825.307(a).
Recertifications: When requesting a recertification, an employer may provide the employee's health care provider with a record of the employee's absences and ask whether the absences are consistent with the employee's need for leave. 29 C.F.R. § 825.308(e).
Fitness for Duty Certifications: The employer may require that a fitness for duty certification address whether the employee can perform the essential functions of the job. 29 C.F.R. § 825.312(b).
Restrictions While on Leave: Employer may restrict employees from working elsewhere if the employer has a uniformly applied policy. 29 C.F.R. § 825.216(e).
New Certification Forms: New certification forms are included with the regulations. There are separate forms for each type of FMLA leave.
Conclusion
The new FMLA regulations include significant changes to both employee and employer rights and obligations relating to FMLA leave. Only time will tell how significant the impact of these changes will be on FMLA leave. Litigation will no doubt bend and interpret the meaning of these regulations, but becoming familiar with these regulations and making our clients aware of these changes will help prevent plaintiffs' lawyers from taking advantage of these changes to pursue litigation.
Erin is an associate at Polsinelli Shughart, P.C. in Kansas City, Missouri practicing in the firm's Labor & Employment group. Erin can be reached at eschilling@polsinelli.com.
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