Sixth Circuit Affirms $173K Jury Verdict in FMLA Interference Case Where Employee Never Returned Medical Certification Because Employer Failed to Provide Unequivocal Written Notice About Consequences

In a case where a plaintiff-employee had become so emotionally distraught that she refused to tell her employer about her medical/mental problems, to return her FMLA medical certification or to provide updated medical notes from her doctor, she prevailed pro se in a FMLA interference action after her employer terminated her for violating its attendance policy by not reporting off or showing up to work for two consecutive days after the two week period mentioned in her physician’s note.  Wallace v. FedEx Corp., No. 11-5500 (6^th Cir. 8-22-14).  The primary rule from the Sixth Circuit’s case last Friday is that an employer cannot require an employee to provide a medical certification form from her physician unless the employer explains in writing to the employee the consequences for failing to return the completed form.   In this case, the twenty year plaintiff-employee had well documented attendance counseling and generally attributed it to non-medical issues because she was embarrassed.   Exacerbated, the employer provided several FMLA forms to the employee and directed her verbally to return the forms within 15 days.  She had also received a disciplinary notice suggesting that she take medical leave until she could comply with the attendance policy, but not mentioning any medical certification requirement.   She had provided the employer with verbal notice of her need for medical leave and a note from her physician which indicated that she needed to be off work for two weeks before being reassessed.  The Court found this note could reasonably be interpreted to support the plaintiff’s need for additional medical leave following the two week period and the employer interfered with her FMLA leave by terminating her a few days after the two-week period expired.   The jury awarded her $173,000 in compensatory damages (i.e., lost wages) and the Sixth Circuit reversed the magistrate judge’s ruling reducing that amount.

According to the Court’s opinion, the employee’s health had deteriorated, but she transferred to a new department with a strict attendance requirement.  When she was coached about her attendance, she apologized for “slacking.”  Her medical condition caused significant weight loss, stomach problems and interfered with her sleep.  When her physician discontinued a narcotic drug, she experienced severe withdrawal symptoms.  Sometimes, she just sat in the employer’s parking lot and cried instead of going into work and other times she reported to her desk and cried.  She told her supervisor on Monday, August 6, 2007 that she was having personal problems because of her “past/baggage/history,” but wasn’t comfortable going into detail.  He encouraged her to be open and offered to find someone with whom she was comfortable speaking.  She then called off work for the rest of week, which made her supervisor suspicious that she knew in advance that she would be sick for the rest of the week.  He directed her to meet with him promptly when she reported to work the following week. 

She was 90 minutes late to work the following Monday.  After she was then 30 minutes late the following Tuesday, the supervisor refused to accept her apology or explanation.  Instead, he gave her a written verbal warning about her repeated poor attendance.  A meeting was held with HR the next day (Wednesday) and the employee attributed her problems to getting her child off to school.  However, she also mentioned that she was having trouble with adjustments in her medication.  She was given the options of coming to work on time, taking medical leave or going through the disciplinary process.  She then met with her doctor who was concerned with her condition and gave her a medical statement covering the prior week’s absence and indicating that she needed to be off work for two more weeks before being reassessed.  She returned to her supervisor, who arranged a meeting with inhouse legal counsel.  He gave her blank FMLA forms and she was verbally directed to return them within 15 days.   The forms stated in part:

that “Family Medical Leave is not automatic” and that “[q]ualification under FMLA will be determined upon timely receipt of the medical certification form (within 15 calendar days) if requested,”   . . . (emphasis added).  In addition, the form stated that “[w]hether your absence is FMLA will be determined upon timely receipt of the medical certification.”  . . . However, the forms were left unmarked. Moreover, the memorandum that [the supervisor] gave [the plaintiff] on August 15 to sign stated: “consider taking a period of time for medical leave until such time as [you] feel[] capable of adhering to the attendance policy and completing [your] work tasks . . .There is no mention of the need for medical certification or the consequences of failing to produce it.

The plaintiff returned to her physician and he promptly completed the FMLA forms.  He also provided her a note that she should remain off work for an additional three weeks.  She never returned the FMLA forms or the updated doctor’s note to her employer.  She later explained that she was experiencing extreme disappointment and was not herself.  She was later diagnosed with depression and ADHD.   When she did not return the FMLA forms or return to work on August 30, her supervisor tried for two days to reach her by telephone and email.  Her line was always busy and she did not respond to the emails warning her of the consequences of not keeping him updated about her medical progress.  The following Tuesday, the plaintiff left a voice mail for HR that she was on her way to the hospital for ear surgery, but her employment was terminated later that day despite that information.  When she received the termination notice, she telephoned the company’s General Counsel that she had the completed medical certification form, but was told it no longer mattered.  At trial, the plaintiff testified that she would have turned in the medical certification form if she had realized the consequences of failing to do so.

On appeal, the Sixth Circuit found that plaintiff need only provide notice of her need for FMLA leave.  She is not required to mention or refer to the FMLA and she is not required to mention the possible duration of the medical leave.  The plaintiff mentioned the problems with the adjustment in her medication and provided her employer with a note from her physician about her need to be off work for two weeks before being reassessed, so she provided sufficient notice of her need for FMLA leave.   The Court rejected the employer’s reliance on the two-week period in the physician’s note:

By focusing on whether [the plaintiff] provided enough documentation for continued leave, [the employer] misses the point of this notice element. The relevant question is whether [the plaintiff] provided [the employer] notice that she needed FMLA leave, not whether she provided notice that she needed a certain amount of FMLA leave.

Granted, “in an ideal world,” the plaintiff would have provided her employer with the updated physician’s note indicating a need for an additional three weeks of medical leave.  However, since his prior note referred to a “reassessment” the jury could reasonably conclude that the two weeks were merely an estimate and that the plaintiff could not return to work before being cleared by her physician.

Being on notice of her need for FMLA leave, it was up to the employer to take action to obtain any necessary information it required about the duration of her leave and any medical certification.  The Court found that the FMLA forms which the employer provided to the plaintiff on August 15 were not clear about there being any consequences if she did not timely complete and return the forms.  There was no unequivocal statement that her FMLA leave could be denied or delayed if she failed to return the forms.  It was irrelevant that she had been verbally instructed to return the forms within 15 days because the FMLA regulations require the warning to be in writing.  Without such written notice to the employee about the consequences of failing to timely return the medical certification, the employer cannot deny or delay FMLA leave based on a failure to provide medical certification.  Accordingly, the plaintiff could not be fired not returning the medical certification.  In other words, she had begun her FMLA leave on August 16 and the employer terminated her during the FMLA leave because it could not object to the lack of information.

[Her] failure to report for work—and her subsequent termination—is a direct result of failing to perfect her FMLA leave, which is a consequence of [the employer] failing to meet its responsibilities under § 825.305. . . .

 . . .

[The employer] claims that it terminated [the plaintiff’s] employment because she was absent—without a valid excuse—for two consecutive days, but the reason her absences were unexcused was because [she] failed to perfect her FMLA leave. The reason she failed to perfect her leave was because she failed to return the medical-certification form, and the reason she failed to return the form, according to the jury, was because [the employer] failed to inform her of the consequences of failing to do so as required by 29 C.F.R. § 825.305. Thus, [the employer’s] failure to provide notice was the proximate cause of her termination, meaning that its failure to comply with the regulations prejudiced [her].

The Court rejected the employer’s argument that it was the plaintiff’s mental illness – and not its failure to comply with the FMLA notice regulations – which caused the plaintiff to fail to return the medical certification forms. “In making this argument, [the employer] disregards § 825.305’s equitable-tolling provision, elevates its attendance policy over the protections of the FMLA, and oversimplifies mental illness. It is impossible to recreate how [she] balanced her exertions in August of 2007, and if she had known that returning the certification was necessary to keep her job, she may have rearranged her priorities in dealing with her mental illness to comply with [the employer’s] request.”

 The Court also rejected the employer’s attack on the legality of the FMLA regulations. Finally, there were a host of technical procedural issues dealing with remittitur (i.e., reduction in the plaintiff’s damages), and the timeliness of post-trial motions and notices of appeal.  In short, the Court ultimately affirmed the jury’s initial award of $173,000, chastised the plaintiff for failing to timely argue her right to front pay and liquidated damages and rejected the employer’s remaining arguments.

 

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. 

New FMLA Regulations Change Return-To-Work Certifications and Clarify Rules on Delaying FMLA Leave Pending Certifications.

As mentioned in the summaries from the last two weeks, the DOL issued new FMLA regulations in November which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices 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 new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

36. §825.311: Intent to return to work. Although this rule was renumbered, there were no substantive changes from the current regulation at §825.309.

37. §825.312: Fitness for duty Certification. The new rule permits an employer to require a fitness-for-duty certification upon a return to work which certifies that the employee is able to resume work and, if the employer provided a list of the essential job functions to the employee and notified the employee of the requirement in the designation notice, addresses the employee’s ability to perform the essential functions of the job. The employer is also permitted to clarify the certification (as with the prior certification), but may not delay reinstatement during the clarification process. The “simple statement” provision has been deleted, as had the provision requiring an employee to provide a certification at his/her own expense if s/he could not return to work because of a continuation, recurrence or onset of a serious health condition.

Intermittent Absences/Reduced Schedule. In general, employers are not entitled to fitness-for-duty certifications for each such absence or reduced leave schedule. However, when “reasonable safety concerns exist” and the employer so notified the employee in the designation notice, an employer may require such certification no more often than every 30 days. “Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others” based on the nature, magnitude and likelihood of potential harm that could occur.

ADA. As with the current regulations, the employer may not violate the ADA in the certification process. However, the new rule makes clear that “the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA” when the ADA is applicable.

38. §825.313 Failure to provide certification. The new rule clarifies that an employer may deny FMLA leave until the employee provides the required certification or recertification. Because the employee typically has 15 days after request to provide the certification or recertification, the period after the 15 days would be unprotected leave. Job restoration may also be denied if the employee fails to provide a fitness-for-duty certification as directed in the prior designation notice.

There are a few additional changes in other regulations (to conform existing regulations to issues already covered in this blog), but they are unlikely to be applicable on a daily basis in most workplaces, so my work here is done summarizing the new FMLA regulations. Of course, readers could always call me for additional details. In any event, insomniacs can read the 201 pages of single-spaced, 9-point font 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.

New FMLA Regulations Create New Certification Requirements for Military Leave for Exigencies and Care of Servicemembers.

As mentioned in the summaries from the last two weeks, the DOL issued new FMLA regulations in November which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices 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 new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

34. §825.309: Exigency Leave Certification. This new “rule establishes that an employer may require that the employee provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation, and the dates of the covered military member’s active duty service. [It also] establishes that each time leave is first taken for one of the qualifying exigencies specified in § 825.126, an employer may require an employee to provide a certification that sets forth certain information,” such as a description of and attaching a copy of a meeting announcement, informational briefings, school counselor appointments, and/or invoices for legal services; the dates of the leave, the frequency and duration of reduced schedule or intermittent leave; contact information for meetings with third parties (like school counselors), etc.. It also “describes the optional form (Form WH–384) developed by the Department for employees’ use in obtaining certification that meets the FMLA’s certification requirements. The form is optional for employers and reflects the certification requirements established in § 825.309(b) so that it is easier for an employee to furnish appropriate information to support his or her request for leave because of a qualifying exigency. Form WH–384, or another form containing the same basic information, may be used by the employer; however, no information may be required beyond that specified in this section.”

Verification Process. Finally, the new “rule establishes the verification process for certifications. . . . If an employee submits a complete and sufficient certification to support his or her request for leave because of a qualifying exigency, the employer may not request additional information from the employee. However, if the qualifying exigency involves meeting with a third party, the employer may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and the nature of the meeting between the employee and the specified individual entity. For example, an employer could call a school to confirm that a meeting took place between the employee and the teacher of a child of a covered military member. The section provides that no additional information may be requested by the employer and the employee’s permission is not required in order to verify meetings or appointments with third parties. In addition, the final rule allows an employer to contact an appropriate unit of the Department of Defense to request verification that a covered military member has been called to active duty status (or notified of an impending call to active duty status) in support of a contingency operation. Again, no additional information may be requested by the employer and the employee’s permission is not required. This verification process will protect employees from unnecessary intrusion while still providing a useful tool for employers to verify the certification information given to them.” The final rule does not provide for a re-certification process because the DOL found it unnecessary under the circumstances.

35. §825.310 Servicemember Care Leave Certification. This new “rule provides that when leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his or her request for leave with a sufficient certification . . from [an] authorized health care provider” of the covered servicemember. The DOL also developed a new optional form, Form WH–385, which may be used to obtain appropriate information to support an employee’s request for leave to care for a covered servicemember with a serious injury or illness.” The new form seeks “information specific to the NDAA requirements for taking leave to care for a covered servicemember, including: (1) Whether the servicemember has incurred a serious injury or illness; (2) whether the injury or illness may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating; (3) whether the injury or illness was incurred by the member in line of duty on active duty; and (4) whether the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list. The . . . optional certification form (WH– 385) for covered servicemember leave includes two additional categories of internal DOD casualty assistance designations used by DOD health care providers ((VSI) Very Seriously Ill/ Injured and (SI) Seriously Ill/Injured) that also meet the standard of a serious injury or illness.”

As with the regular medical leave form, employees may be required to describe “(1) the probable duration of the injury or illness; (2) frequency and duration of leave required; (3) if leave is requested on an intermittent or reduced schedule basis, an estimate of the frequency and duration of such leave; and (4) the family relationship of the eligible employee to the covered servicemember.” Employers are permitted to “use this optional form, or another form containing the same basic information; however, as is the case for any required certification for leave taken to care for a family member with a serious health condition, no information may be required beyond that specified in § 825.310 of the final rule. In all instances, the information on any required certification must relate only to the serious injury or illness for which the current need for leave exists.

In addition, “the rule provides that an employer requiring an employee to submit a certification for leave to care for a covered servicemember must accept as sufficient certification ‘‘invitational travel orders’’ (‘‘ITOs’’) or ‘‘invitational travel authorizations’’ (‘‘ITAs’’) issued by the DOD for [any] family member [or next of kin] to join an injured or ill servicemember at his or her bedside” in lieu of form WH-385 or the employer’s own certification form. [These ITOs or ITAs for medical purposes are not issued by the DOD as a matter of course, but rather only when the servicemember is, at minimum, seriously injured or ill. The Department believes that all family members of a covered servicemember who are eligible to take FMLA leave to care for the covered servicemember should be able to rely on the DOD’s issuance of an ITO or ITA as sufficient certification to support a request for FMLA leave during the effective period of the ITO or ITA, even if the employee is not named on the ITO or ITA.] If an employee will need leave to care for a covered servicemember beyond the expiration date specified in an ITO or an ITA, the final rule provides that an employer may request further certification from the employee.” When an employee is using the ITA or ITO issued to another family member, “an employer may require an employee to provide confirmation of covered family relationship to the seriously injured or ill servicemember pursuant to § 825.122(j) of the FMLA in support of the employee’s use of an ITO or ITA.”

Finally, “the final rule provides that in all instances in which certification is requested, it is the employee’s responsibility to provide the employer with complete and sufficient certification and failure to do so may result in the denial of FMLA leave.” While employers may utilize the same verification and clarification process and deadlines utilized with regular FMLA leave, there is no provision for re-certification or second or third medical opinions with servicemember care leave.

I will eventually complete my summary of the remaining significant changes in the new FMLA regulations on this blog, including at New FMLA Regulations Change Return-To-Work Certifications and Clarify Rules on Delaying FMLA Leave Pending Certifications. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font 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.

New FMLA Regulations Change Process of Medical Certifications.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices 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 new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

30. §825.305: Certifications Supporting Need for Leave. Employers may still require certification of the need for leave (including medical certifications and certifications of qualifying exigencies). Employers must give at least notice of the need for certification when it is required for exigency leave and written notice for medical certifications. Employer must also advise the employee of the anticipated consequences of the employee’s failure to provide the certification.

Timing. The DOL substantially modified the timing of certification process. Employers now have five business days (instead of just two) to request certification. “The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.” Employees must return the completed certification within 15 calendar days (including employees who give at least 30 days advance notice of foreseeable leave who currently need only return the certification before the leave commences). The employee can return the certification later if it is not practicable despite the employee’s diligent, good faith efforts or if the employer agrees to a longer period of time. Employers are not required to inform employees when the employer has not received the requested FMLA certification form. Rather, employees must assume the burden of confirming with the employer and, if applicable, the healthcare provider to ensure that the certification form has been delivered (if the employee did not personally deliver it).

Deficient Certifications. If the certification received by the employer is incomplete or insufficient, the employer must so advise the employee in writing what additional information is necessary to cure the certification. “A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” The employee has seven calendar days to cure any noted deficiency (unless the time is not practicable despite the employee’s diligent, good faith efforts). If the deficiencies are not cured by the re-submitted certification or is not resubmitted within the time frame, the employer may deny the FMLA leave until the required certification is provided. The employer is not required to provide multiple opportunities for the employee to cure a defective certification form.

Less Strict Standard. Significantly, the DOL deleted the current requirement prohibiting employers from requesting medical or other certification if the employee substituted paid leave and that paid leave policy utilized less onerous procedures. For instance, most employer sick leave policies do not require an employee to produce medical certification if an employee misses less than three days of work due to an illness. However, the DOL feels that the FMLA gives the employer the right to seek FMLA certification if that illness is covered by the FMLA (i.e., recurring, chronic conditions, etc.). Accordingly, employers may not require the employee to produce medical certification forms if the absence will be protected by the FMLA even if the employee substitutes paid sick leave for the unpaid FMLA leave and the employer’s sick leave policy does not require medical certification.

Annual Certifications of Long-Term Health Conditions. The new regulation also permits an employer to request a new medical certification form every new leave year when the absence is due to a serious health condition which lasts beyond a single leave year.
Employer can require annual recertification for chronic conditions. This is considered a new medical certification (with the right to authentication and second opinions, etc.) and not a recertification.

31. §825.306: Medical Certification forms. The DOL has created two separate forms for medical leave – one for the employee’s own condition (form WH-308-E) and one for the medical condition of a family member (form WH-308-F). Both forms are attached as Appendix B to the final regulations and may be found on the DOL website. Employers are still precluded from requesting information from a medical provider beyond what is on the DOL forms as a condition of FMLA leave, but notably may now request additional information in connection with substituting paid leave under the employer’s regular policies or state workers’ compensation system or in evaluating requests for reasonable accommodations under the ADA. Employers may consider this additional information obtained in connection with workers’ compensation claims, paid leave policies and/or ADA reasonable accommodations in evaluating requests for FMLA leave. However, employees must be informed that their failure to satisfy these additional requests for information will not affect their entitlement to FMLA leave.

Medical Releases. Employers are still precluded from seeking a release for medical records as a condition of obtaining FMLA leave, but employees are free to provide a medical release to the employer in the employee’s discretion. Providing a release/waiver does not relieve the employee of his/her obligation to provide a complete medical certification upon request. If the employee provides such a release or waiver, the employer may contact the medical provider directly.

New Information to be Requested. The new forms permit the employer to obtain the healthcare provider’s fax number, specialization (which will be helpful in the event that the employer wants a second opinion from a specialist), whether working a reduced schedule is medically necessary, whether there will be any episodic flare-ups (including the anticipated frequency and duration of the flare-ups) and whether it will be medical necessary for the employee to be absent from work if there are such flare-ups. The DOL still will not require a physician to provide a diagnosis, but is encouraged to provide medical facts which may include symptoms, diagnosis, or any regimen of continuing treatment.

32. §825.307: Authentication, clarification and other medical opinions. Although under the current regulations, an employer is not permitted to directly contact the employee’s healthcare provider, under the new regulations the employer is permitted to directly contact the employee’s healthcare provider under two circumstances to obtain authentication or clarification of the form. The employer is still not permitted to request additional information from the healthcare provider.

Authentication. After the employer has given the employee the opportunity to cure any deficiencies in the notice (as discussed above), the employer’s healthcare provider, human resources professional, leave administrator or management official (who is not the employee’s direct supervisor) may directly contact the employee’s healthcare provider, provide the provider with a copy of the certification and request verification that the information contained on the form was completed and/or authorized by the provider who signed the document. Although the employee’s consent is not necessary (and is unlikely in the event of fraud), the employee is responsible for providing the employer with any authorization required by HIPAA in order for the employer to authenticate information on the certification form.

Clarification. After the employer has given the employee the opportunity to cure any deficiencies in the notice (as discussed above), the employer’s healthcare provider, human resources professional, leave administrator or management official (who is not the employee’s direct supervisor) may directly contact the employee’s healthcare provider (without the employee’s authorization) to understand the handwriting on the medical certification or to understand the meaning of a response. The employee is responsible for providing the employer with any authorization required by HIPAA in order for the employer to clarify information on the certification form. If the employee does not provide the employer with any necessary HIPAA authorization, the employer may deny the FMLA leave if the certification form remains unclear.

Second and Third Opinions. Under the new regulations, employees will now be required to authorize the release of all medical records relevant to the FMLA leave to the healthcare providers selected to render second or third opinions (in the event of a dispute). An employer may deny FMLA leave if the employee fails to authorize the release of medical records to the second or third opinion healthcare provider. An employer now has five business days (rather than two) to provide a copy of the second/third medical opinion to the employee.

Foreign certifications. Employees who obtain medical certifications in a non-English speaking country are responsible for having the information translated into English upon request.

33. §825.308: Recertifications. The DOL reorganized and modified the process of recertifications in the new rule. In general, unless the medical certification form provides a definite duration for the condition (i.e., 60 days or lifetime), employers will now be able to request a recertification of the medical condition at least every 30 days. When the certification form provides that the medical condition will last longer than 30 days, the employer can request a recertification no more often than the stated minimum duration (i.e., 60 days) or every six months. If the requested FMLA leave is less than 30 days, the employer may only request recertification if the employee requests an extension of the leave, there has been a significant change in the circumstances described in the certification form or information has cast doubt upon the employee’s stated reason for the absence or continuing validity of the certification. For instance, if the certification form indicated that that the employee would typically miss two days of work for each migraine headache, and the employee took four days off work, the increased duration could constitute a significant change in the circumstances described in the certification form justifying a more frequent recertification request. Another example would be if the employee took four weeks off for knee surgery and then played in a softball league. The employee must return the recertification within 15 calendar days of request.

Suspicious behavior. “As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the healthcare provider if the serious health condition and needed for leave is consistent with such pattern.” This change is consistent with prior DOL letter opinions.

Employees still bear the burden of paying for any recertifications. Employers are still not entitled to second or third opinions of recertifications.

I will eventually complete my summary of the remaining significant changes in the new FMLA regulations on this blog, including at New FMLA Regulations Create New Certification Requirements for Military Leave for Exigencies and Care of Servicemembers. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font 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.

New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices 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 new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

27. §825.302: Employee Notice Requirements. This rule has also been reorganized and contains a few significant changes. As before, employees must give notice of a need for FMLA at least 30 days in advance or as soon as practicable. When the employee fails to do so, “the employee shall explain the reasons shy such notice was not practicable upon a request form the employer.” The new regulations gives examples of when 30 days’ advance notice may not be possible. Notice “as soon as practicable” should typically be given on the same or next business day. The former two-day notice requirement has been deleted. As before, employees need only give verbal notice of a need for FMLA leave (including the anticipated timing and duration) and, for first time FMLA requests, need not mention the FMLA. However, “[w]hen an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.” Moreover, “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and obtain the necessary details for the leave to be taken. An employee’s [f]ailure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.”

“An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” This is a significant change from the current rule and notably would include requirements of written notice setting forth the reasons for the leave and the anticipated duration and to contact a specific person. “When an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” (unless the employer’s policy requires notice to be given more than 30 days in advance or as soon as practicable). “The Department recognizes that callin procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice as set forth in § 825.302(a).”

28. §825.303 Employee notice of unforeseeable leave. The new rule is so substantially similar to the general rule (above) that I am a little surprised that a separate rule was deemed necessary. As a result, I will not repeat those changes here. As with the current rule, employees are expected to give notice as soon as practicable. However, it “generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” The former two-day standard has been deleted. As with the general rule (above), the employee need not mention the FMLA the first time leave is requested, but must do so going forward. “Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

29. §825.304: Employee failure to provide notice. The new rule reorganized and “clarified” the current requirements. For instance, FMLA leave may not be delayed or denied unless the employer has complied with the posting and handbook requirements (discussed yesterday). “If an employer does not waive the employee’s obligations under its internal leave rules and procedures for failure to follow its usual and customary notification rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with §825.303(a).”

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Change Process of Medical Certifications. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font 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.

New FMLA Regulations Significantly Modify Employers’ Notice Requirements.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices 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 new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

26. §825.300 Employer Notice Requirements. The new regulations consolidate in one regulation all of the significant notice requirements imposed on employers and make a a number of other significant changes.

General Notice. In addition to providing the FMLA general notices in a language understood by a significant number of the non-English-speaking employers, the employer is also now required to provide notices that can be understood by sensory-impaired individuals. The fine for non-compliance has been raised to $110.00. Electronic posting of the FMLA general notice is sufficient to comply with the regulation “as long as it otherwise meets the requirements” of the regulation. “For the posting requirement to be met, however, all employees and applicants for employment must have access to the information. Thus, for example, if an employer has some employees who do not have employer provided computer access or who are not otherwise able to access the information electronically, the employer must post on its premises where it can be readily seen a paper copy of the information contained in the general notice. . . . [Nonetheless], electronic posting does not excuse the employer from the statutory requirement to post in a location viewable by applicants for employment. . . . , if the employer posts such information on an intranet that is not accessible to applicants, additional posting would be necessary in a conspicuous place where notices for applicants for employment are customarily posted.”

Employee Handbooks. The general notice information must be included in the employer’s employee handbook, if any, and if there is no employee handbook, the information must be given to each employee when the employee is hired. “In either case,” the information may be distributed electronically as long as the regulation is complied with (i.e., “that the information is accessible to all employees of the employer, that it is made available to employees not literate in English (if required), and that the information provided includes, at a minimum, all of the information contained in the prototype general notice).” The DOL ultimately decided not to require the information to be distributed annually as previously proposed.

Eligibility Notice. When an employee requests FMLA leave or when the employer learns that an employee’s leave may be for an FMLA reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days absent extenuating circumstances. (This notice is limited to eligibility and does not address whether the employee has qualified for FMLA or has already exhausted FMLA leave). The employee’s eligibility must be determined at the beginning of the first instance of leave for each FMLA-qualifying reason. “All FMLA absences for the same qualifying reason are considered as a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.” Conversely, if the employee needs FMLA leave for a different reason within the twelve months, but the employee’s eligibility status has changed, the employer must notify the employee of the changed status within five business days.” If an employee is not eligible for FMLA leave, the employer’s notice to the employee need only state at least one reason why the employee is not eligible.” In addition, “[n]otification of eligibility may be oral or in writing” and “employers may use” a prototype notice provided in the regulations. This notice, of course, must be translated into a language or format the employee understands. Notably, the DOL has deleted the current requirement that the employer provide such a notice with each request for FMLA leave or every six months because “in many cases, is much less frequent than either with ach FMLA-protected absence or every six months.”

Notice of Obligations. When the employer provides the employee with the eligibility notice, the employer must also “provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations” (in a language or format understood by the employee). “If leave has already begun, the notice should be mailed to the employee’s address of record.” When describing the conditions of substituting paid leave, the notice must also specify the employee’s entitlement to take unpaid FMLA leave if the conditions for paid leave are not met. “[A]n employer may meet the requirements of providing information about the conditions related to the substitution of paid leave by reference to existing, employee accessible copies of such policies.” This notice no longer need include any requirement for the employee to present a fitness-for-duty certification following the leave. The notice “may be accompanied by any required certification form,” including the DOL’s prototype notice. If the information changes, the employer must within five days after the next request for leave provide written notice describing and referencing the changed information. Again, this notice may be distributed electronically as previously discussed.

Designation Notice. Once an employer receives enough information (from a medical certification form, etc.) to determine whether a leave qualifies under the FMLA, it “must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave . . . will be a continuous block of leave or intermittent or reduced schedule leave.” When it designates the leave as qualifying under the FMLA, the employer must also notify the employee if paid leave is to substituted for unpaid FMLA leave or that paid leave taken under an existing leave plan be counted as FMLA leave.” If the designation information changes (i.e., the employee exhausts the FMLA entitlement), the employer must “provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.” The DOL has eliminated the current concept of “provisional designation” as confusing to employees.

The employer is required to inform the employee “of the amount of leave counted against the employee’s FMLA leave entitlement. If the amount of leave needed is known at the time” of the Designation Notice, “the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice.” If that is not possible “(such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee’s FMLA leave entitlement upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period. The notice of the amount of leave counted against the employee’s FMLA entitlement may be oral or in writing. If such notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). Such written notice may be in any form, including a notation on the employee’s pay stub.”

Fitness for Duty. If the employer will be requiring the employee to present a fitness-for-duty certificate from the employee’s doctor upon returning to work, the employer must notify the employee of the requirement in the Designation Notice (unless the requirement is already contained in the employee handbook or other written policies). If the fitness-for-duty certificate requires the physician to address whether the employee can perform the essential duties of the employee’s position, the employer must so indicate in the Designation Notice and must also include a list of the essential functions of the employee’s position. The DOL has also supplied a prototype Designation Notice.

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font 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.

New FMLA Regulations Contain Many Employer-Friendly Revisions.

As mentioned in the summaries from the past three days, the DOL issued new FMLA regulations on Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies 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 new rules mentioned at this site at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

22. §825.207: Substitution of Paid Leave. The DOL made significant changes to this rule. First, the new rule “clarifies” that ‘‘substitution’’ of paid leave for FMLA purposes means that the unpaid FMLA leave and the paid leave provided by an employer run concurrently.” The DOL believed that the FMLA itself intended “to emphasize the limits on the situations in which an employer must allow the substitution of paid sick or medical leave, but does not preclude requiring compliance with the normal procedural rules pursuant to which the leave was accrued for paid personal or vacation leave. For example, it clarifies that an employer is not obligated to allow an employee to substitute paid sick leave for unpaid FMLA leave in order to care for a child with a serious health condition if the employer’s normal sick leave rules allow such leave only for the employee’s own illness. . . . . The legislative history of the substitution provision indicates that Congress understood that employers commonly restrict the situations in
which employees may take paid sick, medical, and family leave.”

Employer may apply procedural rules of paid leave policy. “An employer may limit substitution of paid sick, medical or family leave to those situations for which the employer would normally provide such paid leave (e.g., such policies may restrict the use of paid leave only to the employee’s own health condition or to specific family members). Employers must allow substitution of paid vacation, personal leave, or ‘‘paid time off’’ for any situation covered by the FMLA. In all cases, however, the normal procedural rules subject to which the leave was accrued apply—unless waived by the employer—regardless of the type of paid leave substituted. For example, if an employer’s paid sick leave policy prohibits the use of sick leave in less than full day increments, employees would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave. Similarly, if an employer’s paid personal leave policy requires two days’ notice for the use of personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days’ notice. Employers, of course, may choose to waive such procedural rules and allow an employee’s request to substitute paid leave in these situations, but they are not required to do so.”

“Where an employer’s paid leave policy requires the use of such leave in an increment of time larger than the amount of FMLA leave requested by an employee, if the employee wishes to substitute paid leave for unpaid FMLA leave, the employee must take the larger increment of leave required under the paid leave policy unless the employer chooses to waive that requirement. The employer is not required to permit the employee to substitute paid leave for the smaller increment of unpaid FMLA leave.” However, when “an employee chooses to take a larger increment of leave in order to be able to substitute paid leave for unpaid FMLA leave, the entire amount of leave taken shall count against the employee’s FMLA entitlement.”

New Notice Requirement. The new rule “requires that employers notify employees of any additional requirements for the use of paid leave” and “this information must be included with the rights and responsibilities notice required under § 825.300(c). At the employer’s option, this information may be included in the text of the rights and responsibilities notice itself, or the employer may attach a copy of the paid leave policy to the notice, or provide a cross-reference to a leave policy in an employee handbook or other source available to employees, where paid leave policies are customarily set forth.”

Disability/Workers Compensation. The new rule also “clarified” that “[e]mployees on paid disability leave due to a FMLA-protected condition are not on unpaid FMLA leave and therefore the statutory provision for the substitution of paid leave does not apply.” Nonetheless, "employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee’s salary.” Similarly, employees on workers’ compensation leave are not on unpaid FMLA leave and the leaves do not run concurrently. “However, if the workers’ compensation benefits cease for any reason and the employee is still on leave, the substitution provision may become applicable at that time.”

Less Stringent Rule Eliminated. The new, revised rule no longer requires employers to follow the less stringent policy/plan procedures when “paid leave is substituted for unpaid FMLA leave and the employer’s procedural requirements for taking paid leave are less stringent than the requirements of the FMLA, employees cannot be required to comply with the higher FMLA standards.” As a result, when paid sick leave is substituted for unpaid FMLA leave, employers can now require an FMLA medical certification for absences of less three days even if – as is typical-- its paid leave policy does not similarly require a medical statement. Similarly, the employer can require that the notice requirement of the paid policy be complied with by the employee if s/he wants to substitute paid leave for unpaid FMLA leave.

Compensatory time. The new rule permits public employees to substitute compensatory time for unpaid FMLA leave.

23. §825.212: Employee’s failure to pay insurance premiums. This rule currently provides that “an employer may terminate an employee’s health insurance coverage while the employee is on FMLA leave if the employee fails to pay the employee’s share of the premiums, the grace period has expired, and the employer provides sufficient and timely notice to the employee.” The DOL “clarified” this rule further by explicitly reminding employers that “if an employer allows an employee’s health insurance to lapse due to the employee’s failure to pay his or her share of the premium as set forth in the regulations, the employer still has a duty to reinstate the employee’s health insurance when the employee returns to work, and the employer may be liable for harm
suffered by the employee as a result of the violation if it fails to do so.”

24. §825.215: Elimination of Special Bonus Treatment for FMLA Leave. The new rule eliminates a highly unpopular prior requirement that FMLA leave be disregarded for purposes of awarding bonuses for perfect attendance, production or quotas. If “a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied unless otherwise paid to employees on an equivalent leave status for a reason that does not qualified as FMLA leave” such as vacation. This does not mean that employers may utilize no-fault attendance policies. “Penalizing an employee for taking FMLA leave under a ‘‘no fault’’ attendance policy is distinct from disqualifying an employee from a bonus or award for attendance because the former faults an employee for taking leave itself whereas the latter denies a reward for achieving the job-related performance goal of perfect attendance. The Department notes that employers are free to prorate such bonuses or awards in a non-discriminatory manner; nothing in these regulations prohibits employers from doing so.”

25. §825.220: Anti-Retaliation and Settlement of Claims.

a. Remedies for Interfering with FMLA Rights. Violations of the act may result in liability for lost compensation, other actual monetary losses and appropriate equitable or other relief, including reinstatement, or promotion, etc.

b. Waiving FMLA Rights. The current regulations preclude employees from waiving their FMLA
rights. In contrast, the new regulations explicitly provide only that employees cannot waive future FMLA rights. “This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the DOL or a court.”

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Significant Modify Employers’ Notice Requirements. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font 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.

New FMLA Regulations Explain New Exigency and Servicemember Care Leave Requirements and Rights.

As mentioned in the summaries from the past two days, the DOL issued new FMLA regulations on Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies 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 new rules mentioned at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised and the new military servicemember care and exigency leave provisions were explained for the first time:


13. §825.125: Healthcare Provider. The new rule expressly includes Physician Assistants.

14. §825.126: Qualifying Exigency. This leave permits employees to take a leave of absence because of a qualifying exigency associated with a call to active military duty of a family member.

a. Exigency. While exigency leave is implicated based on a call to active duty, this leave entitlement does not extend to family members of regular armed forces or military who are already on active duty or to calls to service by a state governor. The families of regular military are presumed to be accustomed to a career of being called up. Rather, exigency leave applies only when there has been a call to active duty of National Guard, Reserve or retired forces by the President and will cover the following exigencies:
(i) short notice deployment (less than seven calendar days prior to deployment);

(ii) military events and related activities (i.e., official ceremonies, programs, events related to call to active duty, family support or assistance programs, informational briefings sponsored by the military, Red Cross or other service organizations, etc.);

(iii) childcare and school activities (to arrange for alternative childcare or school/daycare for children who are under 18 or incapable of self-care, to attend meetings with school/daycare staff, etc.);

(iv) financial and legal arrangements (i.e., to make or update financial or legal arrangements to address the covered military member’s abence, such as preparing and executing financial and healthcare powers of attorney, etc.);

(v) counseling (i.e., to attend counseling);

(vi) up to five days of rest and recuperation (i.e., to spend time with a cover military member who is on short-term, temporary, rest and recuperation leave during the period of deployment);

(vii) post-deployment activities (i.e., to attend arrival ceremonies, reintegration briefings and events, etc. and to address issues which may arise from the death of a covered military member while on active duty status); and

(viii) additional activities (when the employer and employee agree that such leave qualifies as an exigency and agree to both timing and duration).

b. A covered military member means the employee’s spouse, son, daughter, or parent on active duty or call to active duty status.

c. A covered call to active duty includes a “contingency operation” when it is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force or when it result in the call or order to, or retention on, active duty of members of the uniformed services

15. §825.127: Servicemember care leave. This new rule allows “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a ‘‘covered servicemember’’ to take 26 workweeks of leave during a 12-month period to care for the servicemember. Unlike exigency leave, the covered servicemember may be an active member of the regular armed forces, but does NOT cover former members of the Armed Forces or members on the permanent disability retired list. In particular, this leave covers servicemembers who are “(1) undergoing medical treatment, recuperation, or therapy [from any medical provider]; or (2) otherwise in outpatient status; or (3) otherwise on the temporary disability retired list.” The servicemember will NOT be covered if the injury or illness does not manifest itself until AFTER the servicemember has retired from active forces, although there is no other temporal requirement. Unlike a serious health condition in the regular FMLA, a serious injury or illness for servicemember care leave means an injury or illness incurred by the servicemember in the line of active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating. (A later rule permits the employer to require certification for military caregiver leave, through “ a certification that is completed by any one of the following health care providers: (1) A DOD health care provider; (2) a VA health care provider; (3) a DOD TRICARE network authorized private health care provider; or (4) a DOD non-network TRICARE authorized private health care provider. As part of a sufficient certification, these health care providers may be asked to certify that the servicemember is undergoing medical treatment, recuperation, or therapy for a serious injury or illness.”).

There are a few new wrinkles to how the period of leave is calculated:

(i) Unlike regular FMLA leave, the “twelve month period” begins as soon as the employee is eligible for leave, regardless of what kind of FMLA year the employer utilizes. (This makes sense to the extent that the employee may want to leave to care for the servicemember as soon as learning about the injury).

(ii) If the employee does not take the full 26 weeks available in that twelve month period, the unused amount is forfeited and cannot be used again another time for the same injury or illness suffered by that servicemember. The leave is available per injury and per servicemember.

(iii) The employee would be entitled to another 26 weeks of leave in a different twelve-month period if the same servicemember incurs a different covered injury or illness or if another servicemember is injured or ill as covered by the FMLA. However, to the extent that there is any overlap in a single twelve-month period, the employee is still limited to 26 weeks of leave in a single twelve-month period. . “For example, if a covered servicemember incurs a serious leg injury and a serious arm injury in an accident, an eligible employee would not be entitled to separate 26-workweek entitlements for each serious injury. Additionally, if a covered servicemember experiences a later aggravation or complication of his or her earlier serious injury or illness for which an eligible employee took 26 workweeks of leave, the employee would not be entitled to an additional 26 workweeks of leave for the aggravation or complication of the initial serious injury or illness. Finally, if an eligible employee is caring for a covered servicemember whose serious injury or illness extends beyond the employee’s 26-workweek leave entitlement, the employee is not eligible for an additional 26-workweek entitlement to continue to care for the covered servicemember.”

(iv) The employee may use some of the 26 weeks for his or her own FMLA qualifying reason (i.e., birth, adoption, serious health condition), but is still limited to 26 weeks in a single twelve-month period. In other words, the employee may spend 14 weeks caring for an injured servicemember and 10 weeks on the employee’s own serious medical condition. In no event may an employee take more than twelve-weeks of FMLA leave for a regular reason (i.e., birth, adoption, serious medical condition) in a single twelve-month period regardless of how much servicemember care leave the employee takes or has available.

(v) The employer remains responsible for designating leave as qualifying under the FMLA. When leave simultaneously qualifies as servicemember care leave and leave to care for the serious medical condition of a family member, the employer should first designate it as servicemember care leave.

(vi) Spouses who work for the same employer may be limited to a single unit of 26-weeks of servicemember care leave in the twelve-month period when they are caring for the same servicemember. It is irrelevant that they work at different worksites.

16. §825.200: Amount of Leave. This rule remains substantially unchanged, although additional examples of how to calculate a rolling leave year are provided and new provisions concerning exigency and servicemember care leave were inserted. In addition, the DOL “clarified” how to count holidays which fall within FMLA leave workweeks. When the employee was on FMLA leave during the entire workweek, the holiday will count against the employee. However, when the employee only takes a partial workweek for FMLA leave, the holiday may NOT be counted against the employee’s FMLA entitlement when the employee would not otherwise have been required to report to work on that day. In other words, if “an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.”

17. §825.201: Leave to care for parent. This rule was reorganized, but no otherwise substantive changes were made.

18. §825:202: Intermittent or reduced schedule leave. The DOL explains that it only reorganized the rule and made no substantive changes from the prior rule.

19. §825.203: Scheduling intermittent or reduced schedule leave. This rule was also reorganized, but the DOL inserted a “clarification” that “employees who take intermittent leave for planned medical treatment when medically necessary have a statutory obligation to make a ‘‘reasonable effort’’ to schedule such treatment so as not to disrupt unduly the employer’s operations.” Nonetheless, the “scheduling of planned medical treatment is ultimately a medical determination within the purview of the health care provider. While the employee must make a reasonable effort in scheduling the leave, if the health care provider determines that there is a medical necessity for a particular treatment time, the medical determination prevails. If it is just a matter of scheduling convenience for the employee, the employee must make a reasonable effort not to disrupt unduly the employer’s business operations.”

20. § 825:204: Transferring employee during intermittent or reduced schedule leave. This provision was also merely reorganized, although the DOL received many requests to revise it in order to permit employers to transfer employees who take intermittent leave on a regular, but unforeseeable, basis because of a chronic medical condition. The DOL felt that the statutory language did not permit this modification even though it acknowledged that “this standard may seem to discount the fact that some employees may take intermittent leave regularly, frequently, and predictably— even if unforeseeably—and do so on the advice or recommendation from their physician, which some would argue is akin to planned medical treatment.”

21. §825.205: Increments of leave. In addition to reorganizing this rule, the DOL made extensive, employer-friendly changes. The prior rule required employers to keep track of FMLA leave in minimal increments (of as small as 6 minutes or .1 hours) based on how they calculated other absences and based on the ability of their payroll systems. Employers have long objected to a system which would permit an employee to take off one day each week (without prior notice) and still have FMLA leave left to use at the end of the year.

The new rule provides that an employer should account for the use of intermittent or reduced schedule leave “using an increment no greater than the shortest period of time that the employer uses to account for the use of other forms of leave provided that it is not greater than one hour and provided further than an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.” Presumably, employers may not account for FMLA leave in 15 or 30 minute increments based on how it calculates other leaves of absences or tardiness. In no event may an employer charge an employee with FMLA leave when the employee was actually working. “The Department has also modified the final rule to recognize policies which account for use of leave in different increments at different points in time, thus, permitting employers to maintain a policy that leave of any type may only be taken in a one-hour increment during the first hour of a shift (i.e., a policy intended to discourage tardy arrivals).”

Physical Impossibility. “Where it is physically impossible for an employee using intermittent [or reduced schedule leave] to commence or end work mid-way through a shift, such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed ‘clean room’ during a certain period of time, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement.”

Overtime and Variable Workweeks. The DOL also received many comments about the difficulty of tracking intermittent or reduced schedule leave when the employee’s work schedule varied considerably or s/he worked a significant amount of overtime. Employers also objected to employees using FMLA to avoid working any mandatory overtime. “If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked [without FMLA leave], a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement.” With respect to overtime issues, “[i]f an employee would normally be required to work overtime, but is unable to do so because of a FMLA qualifying reason that limits the employee’s ability to work overtime, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement.” Only mandatory – and not voluntary – overtime may be counted in such a case.

22. §825.207: Substitution of Paid Leave. The DOL made significant changes to this rule. First, the new rule “clarifies” that ‘‘substitution’’ of paid leave for FMLA purposes means that the unpaid FMLA leave and the paid leave provided by an employer run concurrently.” The DOL believed that the FMLA itself intended “to emphasize the limits on the situations in which an employer must allow the substitution of paid sick or medical leave, but does not preclude requiring compliance with the normal procedural rules pursuant to which the leave was accrued for paid personal or vacation leave. For example, it clarifies that an employer is not obligated to allow an employee to substitute paid sick leave for unpaid FMLA leave in order to care for a child with a serious health condition if the employer’s normal sick leave rules allow such leave only for the employee’s own illness. . . . . The legislative history of the substitution provision indicates that Congress understood that employers commonly restrict the situations in which employees may take paid sick, medical, and family leave.”

Employer may apply procedural rules of paid leave. “An employer may limit substitution of paid sick, medical or family leave to those situations for which the employer would normally provide such paid leave (e.g., such policies may restrict the use of paid leave only to the employee’s own health condition or to specific family members). Employers must allow substitution of paid vacation, personal leave, or ‘‘paid time off’’ for any situation covered by the FMLA. In all cases, however, the normal procedural rules subject to which the leave was accrued apply—unless waived by the employer—regardless of the type of paid leave substituted. For example, if an employer’s paid sick leave policy prohibits the use of sick leave in less than full day increments, employees would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave. Similarly, if an employer’s paid personal leave policy requires two days’ notice for the use of personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days’ notice. Employers, of course, may choose to waive such procedural rules and allow an employee’s request to substitute paid leave in these situations, but they are not required to do so.”

“Where an employer’s paid leave policy requires the use of such leave in an increment of time larger than the amount of FMLA leave requested by an employee, if the employee wishes to substitute paid leave for unpaid FMLA leave, the employee must take the larger increment of leave required under the paid leave policy unless the employer chooses to waive that requirement. The employer is not required to permit the employee to substitute paid leave for the smaller increment of unpaid FMLA leave.” However, when “an employee chooses to take a larger increment of leave in order to be able to substitute paid leave for unpaid FMLA leave, the entire amount of leave taken shall count against the employee’s FMLA entitlement.”

New Notice Requirement. The new rule “requires that employers notify employees of any additional requirements for the use of paid leave” and “this information must be included with the rights and responsibilities notice required under § 825.300(c). At the employer’s option, this information may be included in the text of the rights and responsibilities notice itself, or the employer may attach a copy of the paid leave policy to the notice, or provide a cross-reference to a leave policy in an employee handbook or other source available to employees, where paid leave policies are customarily set forth.”

Disability/Workers Compensation. The new rule also “clarified” that “[e]mployees on paid disability leave due to a FMLA-protected condition are not on unpaid FMLA leave and therefore the statutory provision for the substitution of paid leave does not apply.” Nonetheless, “employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee’s salary.” Similarly, employees on workers’ compensation leave are not on unpaid FMLA leave and the leaves do not run concurrently. “However, if the workers’ compensation benefits cease for any reason and the employee is still on leave, the substitution provision may become applicable at that time.”

Less Stringent Rule Eliminated. The new rule no longer requires employers to follow the less stringent policy/plan procedures when “paid leave is substituted for unpaid FMLA leave and the employer’s procedural requirements for taking paid leave are less stringent than the requirements of the FMLA, employees cannot be required to comply with the higher FMLA standards.” As a result, when paid sick leave is substituted for unpaid FMLA leave, employers can now require an FMLA medical certification for absences of less three days even if – as is typical-- its paid leave policy does not similarly require a medical statement. Similarly, the employer can require that the notice requirement of the paid policy be complied with by the employee if s/he wants to substitute paid leave for unpaid FMLA leave.

Compensatory time. The new rule permits public employees to substitute compensatory time for unpaid FMLA leave.

I will continue to summarize additional significant changes in the new FMLA regulations throughout the month on this blog. Additional rules are summarized in Friday's posting at New FMLA Regulations Contain Many Employer-Friendly Revisions. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font 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.

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.