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.
Monday, November 24, 2008
Friday, November 21, 2008
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.
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.
Thursday, November 20, 2008
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.
Wednesday, November 19, 2008
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.
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.
Tuesday, November 18, 2008
DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules.
Yesterday, the DOL issued the long-awaited final revisions to the FMLA regulations governing leaves of absences for serious medical conditions and issued new regulations governing the new military servicemember and exingency leaves of absences. The final rules become effective on January 16, 2009 and will require employers to update their FMLA policies and practices to reflect the new rules.
Among the many changes made in the new FMLA rules are the following:
1. § 825.106: Joint employment. Professional employer organizations (PEOs) which merely administer employee benefits will NOT be considered a joint employer for purposes of determining FMLA eligible UNLESS the PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work they perform depending “on the economic realities of the situation and . . . all the facts and circumstances.’’ In short, whether “an employment relationship exists must be determined in light of the economic realities of the situation.” Moreover, when a PEO is determined to be a joint employer of a client employer’s employees, the client employer would only be required to count employees of the PEO (or employees of other clients of the PEO) if the client employer jointly employed those employees. In any event, the client employer would be considered the “primary employer” for purposes of giving the FMLA notices, etc.
2. § 825.110: Employee Eligibility.
a. Seven Year Gap. To be eligible for FMLA leave, the current regulations require that, among other things, the employee must have been employed for at least twelve months by the employer, although that period need not be consecutive. While February’s proposed rule provided that employers would not need to consider periods of prior employment which preceded a five-year gap of employment, the final rule extends that period to seven years. However, there are three exceptions to the seven-year gap rule: (i) when the gap results “from an employee’s fulfillment of National Guard or Reserve military service obligations as provided by USERRA, (ii) when a “written agreement exists concerning the employer’s intention to rehire the employee after the break in service” (such as a collective bargaining agreement); and (iii) when an employer voluntarily considers prior service pursuant to a consistently applied policy or practice.
b. 1250 hours in prior twelve months. The final rule also clarifies that time spent in military service also counts towards the employee’s 1250 hours in the prior twelve months for purposes of qualifying for FMLA leave. Similarly, the 1250 hour and twelve-month requirements may be satisfied by time spent while an employee is on any other approved leave of absence (including non-FMLA leave). “An employee may be on non-FMLA leave at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-leave qualifying reason after the employee meets the eligibility requirement would be FMLA leave.”
I will summarize additional significant changes in the new FMLA regulations throughout the week on this blog. Additional changes are summarized in my November 19 posting at http://hapnerlaw.blogspot.com/2008/11/new-fmla-regulations-become-effective.html. Until I've completed my summary 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.
Among the many changes made in the new FMLA rules are the following:
1. § 825.106: Joint employment. Professional employer organizations (PEOs) which merely administer employee benefits will NOT be considered a joint employer for purposes of determining FMLA eligible UNLESS the PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work they perform depending “on the economic realities of the situation and . . . all the facts and circumstances.’’ In short, whether “an employment relationship exists must be determined in light of the economic realities of the situation.” Moreover, when a PEO is determined to be a joint employer of a client employer’s employees, the client employer would only be required to count employees of the PEO (or employees of other clients of the PEO) if the client employer jointly employed those employees. In any event, the client employer would be considered the “primary employer” for purposes of giving the FMLA notices, etc.
2. § 825.110: Employee Eligibility.
a. Seven Year Gap. To be eligible for FMLA leave, the current regulations require that, among other things, the employee must have been employed for at least twelve months by the employer, although that period need not be consecutive. While February’s proposed rule provided that employers would not need to consider periods of prior employment which preceded a five-year gap of employment, the final rule extends that period to seven years. However, there are three exceptions to the seven-year gap rule: (i) when the gap results “from an employee’s fulfillment of National Guard or Reserve military service obligations as provided by USERRA, (ii) when a “written agreement exists concerning the employer’s intention to rehire the employee after the break in service” (such as a collective bargaining agreement); and (iii) when an employer voluntarily considers prior service pursuant to a consistently applied policy or practice.
b. 1250 hours in prior twelve months. The final rule also clarifies that time spent in military service also counts towards the employee’s 1250 hours in the prior twelve months for purposes of qualifying for FMLA leave. Similarly, the 1250 hour and twelve-month requirements may be satisfied by time spent while an employee is on any other approved leave of absence (including non-FMLA leave). “An employee may be on non-FMLA leave at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-leave qualifying reason after the employee meets the eligibility requirement would be FMLA leave.”
I will summarize additional significant changes in the new FMLA regulations throughout the week on this blog. Additional changes are summarized in my November 19 posting at http://hapnerlaw.blogspot.com/2008/11/new-fmla-regulations-become-effective.html. Until I've completed my summary 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.
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