DOL Amends FMLA Regulations . . . Again

Earlier this month, the DOL published final regulations to implement FMLA amendments contained in the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). In addition, the DOL removed the "optional" FMLA forms -- such as the prototype medical certification, eligibility notice and designation forms --  from the appendices to the FMLA regulations so that now they can only be found on the DOL website. There were also some selective changes concerning impossibility and intermittent leave and compliance with GINA. Finally, the DOL republished the FMLA regulations in their entirety (i.e., both the amended and non-amended regulations) for the "convenience" of the public.  The regulations become effective on March 8, 2013. 

The new regulations clarify at §825.500(g) that employers are required to comply with GINA to the extent the FMLA certification forms contain genetic information, such as family medical histories:

To the extent that records and documents created for FMLA purposes contain family medical history or genetic information as defined in GINA, employers must maintain such records in accordance with the confidentiality requirements of Title II of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.

The 2010 NDAA expanded FMLA exigency leave rights to include family members of any branch of the regular armed forces (beyond National Guard and Reservists which were already covered by the 2008 NDAA) and by adding a foreign deployment requirement for all of them. The new regulations also increase "the length of time an eligible family member may take for the qualifying exigency leave reason of Rest and Recuperation from five days to up to a maximum of 15 days and creates a new qualifying exigency leave category for parental care."  

An eligible employee may take qualifying exigency leave to care for the parent of a military member, or someone who stood in loco parentis to the military member, when the parent is incapable of self-care and the need for leave arises out of the military member's covered active duty or call to covered active duty status. . . . . the parental care qualifying exigency provision in the Final Rule tracks the childcare provision in setting out the types of situations when qualifying exigency leave is available. Thus, parental care qualifying exigency leave may be used for: (i) Arranging for alternative care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangements; (ii) providing care for a parent of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member; (iii) admitting or transferring a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member; and (iv) attending meetings with staff at a care facility for the parent of the military member, such as meeting with hospice or social service providers, when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member (but not for routine or regular meetings).

Military caregiver leave has also been expanded to cover the family members of recent veterans (who served within the prior five years and incurred an injury or illness in the line of active duty which manifested itself before or after the member became a veteran) and illnesses and injuries which existed prior to active duty, but were aggravated in the line of active duty. A veteran's serious health condition can qualify under several different scenarios.  An employer is also entitled to seek a second and third medical opinion in a few of the scenarios. 

The AFCTCA amendments place airline employees in a special location "Subpart H" for FMLA issues. The Final Rule adopts a uniform entitlement for airline flight crew employees of 72 days of leave for one or more of the FMLA-qualifying reasons (i.e., serious health condition, adoption and exigency leave) and 156 days of military caregiver leave.  In addition, airline employers may not use FMLA increments of more than one-day. Finally, the new regulations establish special hours of service eligibility requirements for airline flight crew employees. 
      

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.