New FMLA Regulations Become Effective On January 16, 2009

As mentioned in yesterday’s summary, the DOL issued new FMLA regulations on Monday which will become effective on January 16, 2009. These rules will require employers to revise and update their FMLA policies and forms and employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the rules mentioned yesterday at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

3. § 825.111: Determination of worksite. The final rule clarifies that an employee’s personal residence is not a worksite when they work from home while telecommuting. “Rather, their worksite is the office to which they report and from which assignments are made.” In addition, for purposes of determining the eligibility of jointly employed employees, the “worksite is the primary employer’s office from which the employee is assigned or reports UNLESS the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee’s worksite is that location.”

4. §825.112: Qualifying Reasons for Leave. Many of the rules have been reorganized, including this one. The final rule adds the new reasons for leave created by the new military leave entitlements: “(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on activity duty (or has been notified of an impending call or order to active duty) in support of a contingency operation . . . . . and (6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the servicemember. . . . . “

5. §§825.113 and 825.115: Serious health condition. The rule has been substantially reorganized, but with only a few substantive revisions. The final rule still recognizes that a serious health condition requires either inpatient care or continuing treatment by a healthcare provider. The definition of inpatient care has not changed.

6. §825.115 Continuing treatment. The final rule still covers pregnancy/prenatal care and permanent/long-term conditions without any substantive changes. When the “continuing treatment” is for periods of incapacity of three or more full days, the final rule now requires that the employee visit the healthcare provider within seven days of the first day of incapacity and receive either (i) a regimen of continuing treatment under the supervision of the healthcare provider or (ii) treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist. Extenuating circumstances refer to circumstances beyond the employee’s control that prevent planned follow-up visits. When the “continuing treatment” is for a chronic serious health condition, the final rule now requires that the employee visit a healthcare provider for that chronic condition at least two times each year.

7. §825.119: Substance Abuse. The final rule consolidates in one place the rules governing FMLA leave for substance abuse. There were no other substantive changes.

8. § 825.120: Pregnancy or Birth. The final rule consolidates in one place the prior rules governing FMLA leave related to pregnancy or birth. The final rule also clarifies a few points. One is that FMLA leave is only available to husbands, not necessarily all fathers (i.e., not a boyfriend or fiancé who is the father) of the unborn child. (Similarly, the twelve-month limit for combined new-born/parental leave only applies to married parents, not unmarried parents). In addition, husbands may only take FMLA leave related to prenatal leave when it is medically necessary. “The husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or if needed to care for her during her prenatal care . … .”

9. §825.121: Adoption or Foster Care. The final rule consolidates in one place the prior rules governing FMLA leave related to adopting a child or placement of a foster child. The new rule also “clarifies” that “both spouses may each take their full 12 weeks of FMLA leave to care for an adopted or foster child with a serious health condition, regardless of whether the spouses work for the same employer.”

10. § 825.122 (Definitions of Spouse, Parent, Son or Daughter, Next of Kin of a Covered Servicemember, Adoption, Foster Care, Son or Daughter on Active Duty or Call to Active Duty Status, Son or Daughter of a Covered Servicemember, and Parent of a Covered Servicemember). When the military service leave was added to the FMLA in January 2008, it quickly became apparent that some definitions would need to be revised or modified because the FMLA currently only covers non-disabled “children” under the age of 18, yet the military amendments clearly contemplated adult children. Further, the FMLA does not current contain a definition for “next of kin.” The final rule maintains the same definition of “son or daughter” for normal FMLA leave as a non-disabled child under the age of 18 or a child over the age of 18 who is incapable of self-care (i.e., needs assistance with three or more activities of daily living) at the time leave is requested. For servicemember leave, “son or daughter” means any biological, adopted or foster child, stepchild or legal ward or any age. The definition of “parent” has not changed and still does NOT include in-laws.

“Next of kin” is defined for the first time because of the military amendments as “the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin.”

11. §825.123: Unable to perform functions of job. The final rule incorporated the prior rule that an employee is unable to perform his or her job if the employee is unable to perform any one of the essential functions of the job (as determined by the ADA). The new rule also provides that an employer has the option to require a healthcare provider to identify which essential functions the employee is unable to perform based on a list of the essential functions provided by the employer for that purpose. The final rule does not require employees to accept light duty positions which are offered by the employer, although the employee remains free to do so voluntarily.

12. §825.124: Needed to care for family. The final rule incorporates the prior standard, but also clarifies that the employee need not be the only individual or family member available to care for the family member or covered service member before being entitled to FMLA leave. Further, the employee is entitled to intermittent leave both when the medical condition involved is intermittent, and also when the employee is only needed intermittently to share caregiving duties, etc.

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog. For instance, additional rules are covered in my November 20 posting at New FMLA Regulations Explain New Exigency and Servicemember Care Leave Requirements and Rights. Until I've completed my summaries and consolidated them in one posting, eager beavers and insomniacs can read the 201 pages of single-spaced new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.