New FMLA Regulations Published

November 18, 2008

On November 17, 2008 the federal Department of Labor published new regulations to the January 2008 amendments to the Family Medical Leave Act ("FMLA"). These regulations include new FMLA forms, new rules for dealing with physicians and new rules regarding military FMLs. The final rule will take effect on January 16, 2009.
 
Clarifications and Changes to Existing Law and Forms:
 
The regulations set forth new rules which employers and employees must follow including: 

The time for employers to provide various FMLA notices is extended from two to five business days.  Clarifications regarding the Medical Certification Process: (1) employer representatives who contact an employee's health care provider must be a health care provider, human resources professional, leave administrator or management official but may not be the employee's direct supervisor; (2) employers may not ask an employee's health care provider for additional information beyond what is required by the certification form; and (3) employers must specify in writing what information is lacking if it deems a medical certification to be incomplete or insufficient. 

An employer can now request recertification of an ongoing condition every six months in conjunction with an absence. 

Changes to the law's "fitness-for-duty" requirements: (1) the employer can require the fitness- for-duty certification to specifically address the employee's ability to perform the essential functions; and (2) the employer can require a fitness-for-duty certification, where reasonable job safety concerns exist, before an employee returns from intermittent leave. 

The employee must follow the employer's usual and customary call-in procedures for reporting an FMLA absence (absent unusual circumstances). 

Clarifications regarding the definition of "serious health condition." Where visits to a health care provider are required, two visits must occur within 30 days of the beginning of the period of incapacity and the first visit must take place within seven days of the first day of incapacity. The first visit to a health care provider as part of a regiment of continuing treatment must take place within seven days of the first day of incapacity. "Periodic visits" for chronic serious health conditions is defined as at least two visits to a health care provider per year. 

An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer's policy that apply to other employees for the use of such leave.  Codifies DOL policy which provides employees may voluntarily settle or release FMLA claims without approval from a court or the DOL. 

An employee who performs a "light duty" assignment following FMLA leave is not on FMLA leave and the time spent performing "light duty" work is not counted against the employee's FMLA leave entitlement.  The removal of a penalty provision that required employers to provide an additional 12 weeks of FMLA- protected leave where the employer failed to properly designate FMLA leave. But note that the employer may be liable if an employee suffers individualized harm because the employer failed to provide proper notification. 

Updated Forms New Military FMLA Related Leave and Forms:
 
In January, 2008, the President signed into law the National Defense Authorization Act ("NDAA") which amended the FMLA. Eligible employees who are family members of covered servicemembers are entitled to take up to 26 workweeks of leave in a "single 12-month period" to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty.
 
The new law also permits employees to take an FMLA for a "qualifying exigency" when a covered military member on active duty or called to active duty status in support of a contingency operation.
 

The regulations relating to the new military leave include:

"Any qualifying exigency" refers to broad categories which define leave: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities not encompassed in the other categories, but agreed to by the employer and employee. 
Two new DOL certification forms may be used by employees and employers to facilitate the certification requirements for the use of military FMLAs. 

New or Updated Forms: 
1. Certification of Health Care Provider for Family Member's Serious Health Condition (Family and Medical Leave Act). Appendix B of Final Regulations. 
2. Certification Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act): Form WH 380E. Appendix B of Final Regulations. 
3. Certification of Qualifying Exigency for Military Family Leave: Form WH-384. Appendix G of Final Regulations. 

Certification for Serious Injury or Illness of Covered Servicemember - for Military Family Leave (Family and Medical Leave Act): Form WH-385. Appendix H of Final Regulations.

For more information regarding this client alert, please contact Sarah E. Newell at 207-947-0111 for further information.

This paper is provided as general information, and is not a substitute for legal or other professional advice.