New FMLA Regulations Require Employer Action

Revised regulations interpreting the Family and Medical Leave Act go into effect on Jan. 16, 2009. The new regulations require employers to revise their current FMLA policy materials and forms. Highlights of the new regulations include:

Employer Notice Obligations

The new regulations consolidate all of the employer notice requirements in one section and impose increased notice requirements on employers. Employers now must provide employees the following notices:

• A general FMLA notice (through a poster, and either an employee handbook or upon hire). A revised poster/general notice, titled "Employee Rights and Responsibilities" (Form WH-1420), has been drafted and is available at the Department of Labor website.
• An eligibility notice and a rights and responsibilities notice within five business days (absent extenuating circumstances) of being advised by the employee that he/she needs to take FMLA leave or otherwise being made aware of the employee's need for such leave. A new form titled "Notice of Eligibility and Rights & Responsibilities" (Form WH-381) is available at the DOL website. This replaces the old form titled "Employer Response to Employee Request for Family or Medical Leave."
• A designation notice within five business days of the employer having sufficient information to determine whether the employee's leave qualifies under the FMLA. If an employer requires substitution of paid leave or a fitness-for-duty certification upon returning from FMLA leave, it must include a statement to that effect in the designation notice. A sample designation notice (Form WH-382) can be found at the DOL website.

The new regulations also reconcile some conflicting provisions regarding timing and other procedures for such notices. Of note, the new regulations: (1) require employers to provide notice of FMLA rights annually; (2) extend the time for employers to send out eligibility and designation notices from two to five business days; and (3) require employers who deem a medical certification to be incomplete or insufficient to return it to the employee, specify in writing what information is lacking, and then give the employee seven calendar days to cure the deficiency.

Employee Notice

The regulations provide that, absent unusual circumstances, an employee's notice of FMLA leave must comply with the employer's usual and customary call-in procedures for reporting absence. This modifies the current provision that has been interpreted to allow employees to provide notice of the need for FMLA leave up to two full business days after an absence even if they could have provided notice earlier.

Medical Certification Process (Content and Clarification)

The regulations now allow direct contact between the employer and the health care provider for purposes of clarification of a medical certification form so long as the requirements of HIPAA medical privacy regulations are met. Employers, however, may not ask health care providers for additional information beyond that required by the certification form. The DOL also added a requirement that the employer's representative contacting the health care provider may be a health care provider, human resource professional, a leave administrator or a management official, but in no case may it be the employee's direct supervisor. The DOL's optional Form WH-380 has also been amended to allow, but not require, health care providers to give a diagnosis of the patient's health condition as part of the certification. And a separate form has been created for employee (Form 380E) and covered family members (Form 380F).

Medical Certification Process (Timing)

The regulations clarify that an employer may request a new medical certification each leave year for medical conditions that last longer than one year.

In addition, the DOL now allows an employer to request recertification of an ongoing condition every six months in conjunction with an absence - even for conditions described as "lifetime" or "unknown."

Serious Health Condition

The new regulations state that the "two visits to a health care provider" under the definition of "serious health condition" must occur within 30 days of the period of incapacity. Moreover, the first visit to the health care provider must be in person and must take place within seven days of the first day of incapacity.

The regulations also define "periodic visits" for chronic serious health conditions as at least two visits per year to a health care provider.

Fitness-For-Duty Certifications

The final regulations make two changes to the fitness-for-duty certification process. First, employers may require that the certification address the employee's ability to perform the essential functions of the employee's job. Second, where reasonable job safety concerns exist, an employer may also require a certification before the employee can return to work when the employee takes intermittent leave. Substitution of Paid Leave As is currently the case for substitution of paid sick leave, under the new regulations an employee may elect, or an employer may require an employee, to utilize any form of paid leave - including for example accrued paid vacation or personal leave - generically referred to as "paid time off" concurrently with FMLA leave when the employee has met the terms and conditions of the employer's paid leave policy. An employer may also waive any procedural requirements for the taking of any type of paid leave. The employee, however, is always entitled to unpaid FMLA leave if he or she does not meet the employer's conditions for paid leave.

Light Duty

The regulations clarify that time spent performing "light duty" work does not count against an employee's FMLA leave entitlement and that reinstatement rights are held in abeyance during the period of time spent doing light duty work. If an employee is voluntarily performing light duty assignment, the employee is not on FMLA leave.

Attendance Awards

Employers may now deny a "perfect attendance" award or bonus to an employee who takes FMLA leave (and is therefore absent) as long as it treats employees taking non-FLMA leave (e.g., vacation) in an identical way.

Waiver of Rights

The regulations reinforce the position of the DOL that employees may voluntarily settle or release their FMLA claims without court or DOL approval, despite court decisions - including one in the Fourth Circuit Court of Appeals - to the contrary. Prospective waivers of FMLA rights are still prohibited.

Penalties

The final regulations remove the categorical penalty provisions invalidated by the U.S. Supreme Court in Ragsdale v. Wolverine World Wide, Inc., and make clear that where an employee suffers individualized harm because the employer failed to follow the FMLA notification regulations, the employer may be liable to that employee.

Attorneys at Robinson Bradshaw are also available to assist in updating your policies or forms to ensure compliance with the new regulations. Please contact a member of our Employment and Labor Practice Group for more information regarding these services.