Revisions to the

Family and Medical Leave Act

January 16, 2009

Changes to 1995 regulations

1. Eligibility requirements

Employers need not count employment prior to a break in service of 7 years when determining if the employee has the required 12 months service.

1. Serious health condition

A.   For an acute illness (more than 3 consecutive days and the employee sees the health care provider twice):

·         The first visit must be within 7 days of the date of incapacity

·         The second visit must be within 30 days of the date of incapacity

B.  For chronic illnesses, the employee must visit the health care provider twice a year in connection with the condition to keep the designation.  *This may cause problems – be careful!

3.  General notice requirements

Employers will have to post the new FMLA poster and update handbooks and policies.

4.  Employee notice

A.   For leave that is not foreseeable, the employee must notify the employer “as soon as practicable,” meaning the same or the next business day.

B.    Employers will be allowed to enforce call-in procedures, unless there are unusual circumstances.  They may deny or delay leave if the employee does not comply with these procedures.

C.    Employers are very pleased with this change.

5.  Responding to the request for leave

A.   Employers must now give two different responses to the request for FMLA leave.

B.    Employers must give an Eligibility Notice within 5 business days of the request for leave. 

Ø  If the employee is not eligible for FMLA, the notice must give at least one reason why not.

Ø  Eligibility remains effective for the leave year, even if the hours worked during that year drop below 1250.

Ø  Form 381 is the model for the Eligibility Notice.

C.    Employers must inform the employee if their leave qualifies as   FMLA on the Designation Notice.

Ø  This notice must be given within 5 business days of receiving the medical certification.

Ø  One notice is required in each 12-month leave year.

Ø  The Designation Notice is Form 382.

6.  Medical Certification

A.   The employer must request medical certification within 5 business days of the employee requesting FMLA.

B.    Big change:  The employer can attach a copy of the essential duties of the job and ask the Health Care Provider (HCP) to certify which duties the employee cannot perform.

C.    The employee must provide a certification form that is “complete” and “sufficient.”  If it is not, the employer must give the employee 7 calendar days to correct.

D.   Big change:  The employer can contact the HCP directly to authenticate or clarify information on the form.  The employee’s direct supervisor cannot make this contact.

E.    Certification forms have changed.  See Form 380 E for certification     of employee health condition and Form 380 F for family member.

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7.  Recertification

A.    The employer must allow 15 days to recertify.

B.    The employee may require recertification every 30 days, unless the HCP lists the minimum duration of the health condition as more than 30 days.

C.    Recertification is allowed every 6 months in all cases, including “indefinite” or “lifetime” cases.

8.  Intermittent leave

The employer is no longer required to use the shortest increment in the payroll system.  The employer may now use the shortest time period used for other forms of leave, but that cannot be greater than one hour.

9.  Bonus programs

     If a bonus is based on the achievement of a specific goal – like hours worked or perfect attendance – the employer may deny it to employees    taking FMLA.  In doing so, however, the employer must be consistent          across all other forms of leave.

10. Light duty

     Light duty assignments cannot be counted against FMLA leave.

11.  Calculating FMLA amounts

A.    If an employee is working a variable workweek, the number of hours for an FMLA “week” is the average number of hours worked over the previous 12 months (not 12 weeks, as in the old regulations).

B.    In determining the amount of FMLA used:  If there was mandatory overtime during the period the employee was on FMLA, it is counted as FMLA leave.  If the overtime was voluntary, it is not counted as FMLA leave.

C.    For holidays:  If a holiday falls during a full week of FMLA, it is counted as FMLA.  If the employee is on FMLA less than the full holiday week, the holiday is not counted as FMLA.

12.  Public employees may now substitute comp time for unpaid FMLA leave.

13. As part of severance agreements, employees may now be asked to                          waive their rights to prior FMLA claims.

Military Family Leave

In 2008, Congress amended the FMLA to provide leave for military families.  The law now provides:

·         12 weeks for a “qualifying exigency.”

·         26 weeks to care for a covered service member. 

12 Weeks for Qualifying Exigency

1. When can an employee take leave for a “qualifying exigency?”
   1. The employee’s spouse, son, daughter, or parent…
   2. Is on active duty or call to duty status in the National Guard or Reserves in support of a “contingency operation.”

1. What is a “Qualifying Exigency?”
   1. Short-notice deployment (7 days)
   2. Military events and related activities
   3. Childcare and school
   4. Financial and legal arrangements
   5. Counseling
   6. Rest and recuperation (5 days)
   7. Post-deployment activities
   8. Other activities as agreed with the employer

1. How is one certified for a qualifying exigency?
   1. Copy of active duty orders for the service member
   2. The employee may need to certify:

·         The facts necessitating leave

·         Approximate date the exigency began

·         Duration and schedule of the leave

1.  
   1. The employer may verify information by checking with the military commander.
   2. See Model Form WH-384.

26 Weeks to Care for a Covered Service Member

1. Who is a “covered service member?”
   1. The employee’s spouse, son, daughter, parent or “next of kin” on active duty in the regular armed forces, the National  Guard, or the Reserves.
   2. Has suffered serious injury or illness in the line of duty.
   3. Is undergoing medical treatment, recuperation or therapy, or otherwise is on the temporary disability retired list.

D.  Does not apply to veterans, even if disabled.

1. Who is a “next of kin?”  Generally, the nearest blood relative, in this order:

A.   The relative designated by the service member

B.    The relative with legal custody

C.    Brother or sister

D.   Grandparents

E.    Aunts and uncles

F.    First cousins

G.   All relatives in the same category are considered next of kin.  For                example, all siblings or all grandparents.

1. How are the 26 workweeks computed?

A.   The 26 weeks include all military and regular FMLA.  An employee       cannot add 26 weeks and 12 weeks.

B.    The military leave must be taken in a single 12-month period, starting          with the first day of leave.

C.    The 26 week limit is per service member, per injury.

D.   A husband and wife working for the same employer may be limited to a         combined total of 26 weeks.

1. What information is required from the employee to get this leave?

E.    Name of the covered service member

F.    Relationship to the service member

G.   Service member’s branch, rank, unit

H.   Outpatient unit/facility

I.    Temporary disability retired list

J.   Description of care needed

K.    Estimated duration of leave

L.    Medical certification must be provided by an authorized healthcare provider (DOD, VA, Tricare only)

M.  Employees may also use an Invitational  Travel Order or Authorization

N.   See Model  Form WH-385

1. What verification may the employer require?

O.   The employer may seek authentication or clarification of the certification form.

P.    The employer may require confirmation of the family relationship.

Q.  The employer may not require second or third opinions.

R.    The employer may not require re-certification.

1. And where can I find the new regulations on the web?

Try this:  http://www.dol.gov/esa/whd/fmla/finalrule.htm

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