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.
