In 2008, President Bush signed into law the National Defense Authorization Act ("NDAA") which amended the Family and Medical Leave Act ("FMLA") as it relates to military family leave. The NDAA mandates that employees may use up to 26 weeks of FMLA leave during a twelve month period in order to care for a next of kin who is a military service member suffering from a "serious illness" received in the line of duty. It also provides the FMLA's standard 12 weeks of leave during a twelve month period for a "qualifying exigency" related to an immediate family member's call to active duty in the military. The NDAA charged the Department of Labor ("DOL") with defining "qualifying exigency" through the DOL's power to regulate under the FMLA.
In its final rule, effective in January 2009, the DOL said that the following examples constitute a "qualifying exigency" under the FMLA: (1) a short notice deployment of 7 days or less; (2) to attend military events sponsored by the military and/or Red Cross; (3) to arrange for child care and/or to attend non-routine school functions of the child of a covered military family member; (4) to take care of financial and/or legal affairs and matters for a covered military family member; (5) up to five days to spend time with a covered military service member on rest and recoupment leave; (6) to attend non-health care provider counseling arising from active duty in the military; (7) to attend ceremonies incident to the return of a covered military family member for a period of 90 days following military family member's termination from active duty; (8) any other activity arising out of a covered military service member's call or service to active duty.
Not all of the DOL's new regulations relate to military family leave. Some of the important non-military family leave changes that are effective January 2009 include the following:
A. Employers must now provide employees much more substantive notice whenever leave is designated FMLA. Employers must provide the notice to employees within five (5) days of having sufficient information to make the determination. The previous regulations required the designation notice to be provided within two (2) days, which often proved to be difficult . However, having more time to designate the leave comes with a price – employers are now required to inform employees of the precise number of hours, days, or weeks that will be designated FMLA within the body of the notice. The more substantive calculations may prove difficult for unforeseeable and intermittent leave requests. The DOL also requires employers to inform intermittent employees every 30 days that their leave is designated and protected under FMLA and to advise employees as to the amount of FMLA taken during the 30-day period.
B. Employers are now permitted to directly contact an employee's medical provider in order to obtain clarification or authentication of FMLA documentation. Previous regulations prohibited employers from personally contacting an employee's medical provider. Instead, employers were limited to communicating with the employee's medical provider solely through the employer's own retained medical provider. Even then, the employee had to first consent. The new regulation is clear, however, that even though employers will now be permitted to contact an employee's medical provider personally, the employer must still comply with HIPAA's privacy rules. Therefore, employers will need to have employees complete a HIPAA Release prior to contacting the employee's medical provider. Further, the regulations clarify that the employee's manager/supervisor cannot be the employer representative who contacts the medical provider. As a practical matter, the HR representative should be the company representative clarifying FMLA documentation.
C. Employees must comply with an employer's usual paid leave call-in procedures before taking unscheduled, intermittent leave under the FMLA except in cases of emergency. The new regulations make clear that an employee covered under FMLA is not entitled to any paid benefits that they would not normally be entitled to under the employer's paid leave policy. Further, employees who take FMLA may now be denied perfect attendance bonuses/awards so long as employees who take non-FMLA leave would equally be ineligible for the bonus/ award. This regulatory change is very welcome and will help remove employee perception that FMLA-covered absences are treated more favorably than non-FMLA covered absences as to the same level of leave benefits.
D. The new regulations also permit public employers to run compensatory time concurrently with an employee's FMLA leave. This was not permitted in the previous regulations and serves to treat compensatory time off the same as all other paid leave benefits.
E. Employers are now prohibited from counting an employee's time worked during a temporary light-duty assignment (typically pursuant to a worker's compensation injury) against the employee's twelve-week FMLA allotment. The new regulations specify that time worked in a light-duty assignment does not count toward an employee's FMLA leave eligibility for non-sick leave use award.
F. Finally, the new regulations clarify some confusion in the courts as well as among practitioners as to the validity of an employee's waiver of FMLA rights in a severance or settlement agreement. The DOL's new regulations adopt the majority view that employers and employees can enter into enforceable agreements that waive an employee's right to institute litigation regarding past FMLA claims without need of DOL approval. However, future FMLA claims that arise after the date of the agreement may not be waived.
What should Employers do in order to ensure compliance? Employers must update their FMLA policy immediately to reflect the new FMLA changes. Further, the DOL has created new FMLA Certification forms for the new FMLA military leaves. The DOL has also updated their regular FMLA certification form. Employers are encouraged to visit the DOL's website in order to obtain copies of the new certification forms. Finally, management training as to the new leave provisions and changes is imperative.