On November 17, 2008, the Department of Labor (“DOL”) published its long-awaited revisions to regulations interpreting the Family and Medical Leave Act (“FMLA”). As originally enacted in 1993, the FMLA provided employees meeting certain eligibility criteria with the right to take up to twelve weeks of job-protected unpaid leave during a twelve-month period for four specified family and medical reasons. In January 2008, the FMLA was amended to add new leave rights for military families. The new regulations address the 2008 amendments to the FMLA and make significant (and in many instances, employer-friendly) changes to the existing regulations that have guided employers and the courts since they were first issued in 1995.



Military Family Leaves

Under the 2008 amendments to the FMLA, an eligible employee may take up to twelve weeks of leave in a twelve-month period because of a “qualifying exigency” relating to the fact that the employee has a spouse, child, or parent who serves in the reserve components of the Armed Forces and is on active duty or called to active duty in support of a contingency operation. The 2008 legislation delegated to DOL, however, the authority to define the term “qualifying exigency”, and this new leave right would not become effective until the agency did so. The revised regulations provide the necessary definition.

Under the new regulations, FMLA leave for a qualifying exigency may be taken for any of the following reasons relating to a covered family member’s active duty or call to active duty in support of a military contingency operation to:

  •  Address issues arising from the fact that a covered family member is called to active duty with less than eight days’ advance notice before deployment. (Leave in this situation is limited to seven calendar days.)
  •  Attend military events, programs, or ceremonies.
  •  Attend support programs and informational briefings for military families.
  •  Arrange for alternative childcare or provide childcare for the covered family member’s children.
  •  Enroll the child of a covered family member in a new school or day care facility.
  •  Attend meetings with school or day care facility staff members relating to the child of a covered family member who is unable to attend because of military service.
  •  Make or update financial or legal arrangements relating to the covered family member’s absence for military service.
  • Represent the covered family member in proceedings relating to military service benefits. (Leave for this reason may be taken up to ninety days after the termination of the family member’s active-duty status.)
  • Attend counseling for the employee, the covered family member, or the family member’s child relating to the family member’s military service.
  • Spend time with a covered family member who is on a rest-and-recuperation leave from the military. (An employee may take no more than five days of FMLA leave for each rest-and-recuperation leave of the family member.)
  • Address issues relating to the death of a covered family member while on active duty.
  • Address other events relating to a covered family member’s active duty or call to active duty, provided the employer agrees that such event qualifies as an exigency and agrees to the timing and duration of the leave.

The regulations clarify that FMLA leave for a qualifying exigency is available only when the covered family member is a member of the reserve components of the Armed Forces or is a retired member of the Armed Forces. FMLA leave may not be taken for a qualifying exigency if the covered family member serves in the Regular Armed Forces. Moreover, the covered family member must be on active duty or called for active duty in support of a contingency operation pursuant to one of seven statutory provisions identified in the new regulations or pursuant to any other provision of law during a war or national emergency. Generally, a state or territorial, rather than federal, call to duty will not trigger the right to FMLA leave.

The 2008 amendments to the FMLA also created a right to take up to twenty-six weeks of FMLA leave in “a single twelve-month period” to care for a parent, spouse, child, or relative to whom the employee is the next of kin when the family member is being treated for or is recuperating from a serious injury or illness incurred in the course of active duty in the military. Under the new regulations, leave for this reason may be taken regardless of whether the family member serves in the Regular Armed Forces or in a reserve unit, but leave is no longer available once the family member ceases to be a member of the Armed Forces or is placed on the permanent disability retired list.

The new regulations establish rules for determining when an employee is the next of kin of a relative in the Armed Forces. An employee is the next of kin if he or she is a blood relative who has been granted legal custody of the service member or who has been designated in writing by the service member as the next of kin for the purposes of FMLA military caregiver leave. In the absence of legal custody or written designation, next of kin is determined in the following descending order of priority, disregarding the service member’s parents, spouse, or children: siblings, grandparents, aunts and uncles, and first cousins. If there are multiple family members with the same level of relationship to the service member, all of them will be considered “next of kin,” and all of them could take FMLA military caregiver leave.

The fact that eligible employees may take up to twenty-six weeks of FMLA military caregiver leave in “a single twelve-month period,” but are limited to twelve weeks of leave in a twelve-month period for other FMLA-qualifying reasons is likely to create administrative headaches for employers. The new regulations address some of the issues that may arise in connection with military caregiver leave. For example, they provide that the single twelve-month period during which military caregiver leave is available begins to run on the first day that an employtee takes military caregiver leave and ends twelve months after that date, regardless of the method of defining a twelve-month period that the employer uses for determining available leave for other FMLA-qualifying reasons. The regulations apply the “single twelve-month period” on a per-service-member and per injury/illness basis. For example, if an employee has two children serving in the Armed Forces and the employee takes twenty-six weeks of leave to care for one of those children with an active-duty-incurred injury, the employee could, after the expiration of the twelve-month period commencing with the start of that leave, take up to twenty-six weeks of FMLA leave to care for the other child with an active-duty-incurred injury.

The regulations specify that during the “single twelve-month period” commencing on the first day of a military caregiver leave, an eligible employee may take no more than twenty-six weeks of FMLA leave, including up to twelve weeks of FMLA leave for reasons other than care of a service member with a serious injury or illness. Leave taken for other FMLA-qualifying reasons outside of the twelve-month period commencing on the first day of a military caregiver leave, however, will not diminish the employee’s right to take up to twenty-six weeks of military caregiver leave. For example, if an employer uses a calendar-year basis for determining FMLA eligibility and an employee takes ten weeks of FMLA leave commencing on February 1 in connection with the adoption of a child, that employee could commence a military caregiver leave on June 1 and would be entitled to a full twenty-six weeks of leave to care for an injured or ill service member, even though all twenty-six weeks occur in the same calendar year as the ten weeks of FMLA adoption leave.

The new regulations state that both military caregiver leave and leave for a qualifying exigency may be taken on an intermittent or reduced-schedule basis. Employers may require documentation and certification of the need for military family leave, and the regulations specify the particular types of information that an employer may require.

General FMLA Provisions

In addition to providing guidance on the application of the recently enacted FMLA amendments, the new regulations revise a number of provisions that had appeared in the original FMLA regulations. In some respects, these changes codify judicial and administrative interpretations of the FMLA that have been handed down since the original FMLA regulations were issued in 1995. Some of the changes, however, reflect complaints from the business community about provisions of the original regulations that were viewed as unreasonable, unworkable, or unclear. Major aspects of the revised regulations are discussed below.

Eligible Employee Status. To be eligible for FMLA leave, an employee must, among other things, have been employed by the employer for a total of at least twelve months. The twelve months of employment need not be consecutive, but the new regulations provide that a period of employment preceding a break in service of seven years or more need not be counted unless the break in service was due to National Guard or Reserve military service or unless the employee had a written agreement with the employer calling for rehire after an approved absence or leave of more than seven years.

Definition of “Serious Health Condition.” The revised regulations include several modifications to the definition of a “serious health condition” that would justify a health-related leave under the FMLA (other than a military caregiver leave). Under one prong of the definition, a physical or mental condition constitutes a serious health condition if it results in a period of incapacity for more than three days and two or more visits to a health care provider. The new regulations require that the two visits to a health care provider occur within a thirty-day period, with the first visit occurring within seven days of the first day of incapacity. Furthermore, the regulations now classify a chronic condition as a serious health condition only if, among other things, it requires visits to a health care provider for treatment at least twice a year.

Application of Employer’s Policies and Practices. The original FMLA regulations contained a number of provisions indicating that FMLA rights trump employer policies regarding absences and the use of paid vacation and sick leave. The new regulations adopt a much more reasonable approach to blending FMLA leave rights with reasonable absence-control policies and practices. For example, employees seeking to substitute paid vacation, sick leave, or personal days for unpaid FMLA leave will now have to comply with the employer’s restrictions on the use of paid leave in doing so. Thus, if a vacation policy prohibits the use of vacation in less than full-day increments, an employee seeking to use paid vacation during an unpaid FMLA leave would have no right under the FMLA to use less than a full vacation day but could still take an unpaid partial-day FMLA leave. Similarly, if an employer’s policy requires at least two days’ notice before the use of a paid personal day, an employee seeking to substitute a personal day for an unpaid FMLA leave day would have to give at least two days’ notice before that substitution may be made.

The revised regulations also require employees to follow an employer’s established call-in procedures in connection with an FMLA-related absence. Unless unusual circumstances are present that would prevent an employee from calling in to report an absence, the failure to comply with the employer’s established procedures will allow the employer to delay or deny FMLA protections for the absence. This change will be particularly helpful to employers in managing unscheduled intermittent leave under the FMLA. For example, if an employer requires employees to call in before the start of a shift to report an absence and an employee who has been approved for intermittent FMLA leave fails to do so and calls in late in the day to report that his absence is FMLA-related, the employer may treat the absence as unprotected by the FMLA and may count the absence against the employee for disciplinary purposes, unless unusual circumstances are present that would excuse the failure to call in before the start of the shift.

Release of FMLA Claims. Because of differing interpretations given to language in the original FMLA regulations, courts reached differing conclusions on the question of whether employees could waive or release existing claims under the FMLA in a severance or settlement agreement. The new regulations clearly state DOL’s position that employees may waive past claims under the FMLA and may do so without first obtaining the approval of DOL or a court.

Employer Notices. The new regulations contain a number of revisions relating to the notices an employer must provide to employees with respect to FMLA rights. The regulations now expressly allow employers to post the required FMLA poster electronically on their internet and intranet sites instead of physically in their workplaces. In addition, the new regulations give employers five business days (instead of the original two) after learning of an employee’s need for FMLA leave to furnish the employee with a notice of the employee’s FMLA eligibility status, and the regulations require certain new information in this notice. The regulations also change from two days to five business days the time frame for notifying an employee of the designation of leave as FMLA leave once the employer has sufficient information to make that designation decision. In accordance with a 2002 Supreme Court decision, the new regulations do not impose any penalty on employers that retroactively designate absences as FMLA leave more than five days after they learn that a leave is for an FMLA-qualifying reason, but the failure to provide the FMLA designation notice in a timely fashion may result in liability to the employer if the employee can show harm stemming from the delay in designation.

Under the revised regulations, if leave is not designated as FMLA leave because of insufficient information or a nonqualifying reason, the employer must notify the employee of that fact. If an employee qualifies for intermittent leave on an unpredictable basis, the employer must notify the employee upon request every thirty days of the amount of leave time designated as FMLA leave during the preceding thirty days, provided the employee used leave during that period.

Employee Notice Requirements. An employee ordinarily need not expressly mention the FMLA when requesting a leave covered by that law. However, when an employee seeks leave for an FMLA-qualifying reason for which the employer has previously granted FMLA leave, the new regulations require that the employee either specifically refer to the qualifying reason for leave or to the need for “FMLA leave” in the leave request. The revised regulations also impose a duty on employees to respond to reasonable employer inquiries aimed at determining whether an absence is covered by the FMLA. The regulations make it clear that an employee’s explaining an unforeseen absence simply by saying that the employee or a family member was “sick” would not be sufficient to put the employer on notice that the absence might be covered by the FMLA.

Medical Certification. Problems encountered by employers in complying with the extremely restrictive original regulations relating to medical certifications obtained in connection with health-related FMLA leaves have prompted DOL to make numerous changes to those regulations. Among other things, the new regulations allow an employer that receives an incomplete or insufficient medical certification to notify the employee in writing of the additional information needed and give the employee seven calendar days to provide it. If the employee fails to provide the requested information in a timely fashion, the employer will ordinarily be permitted to deny the taking of the FMLA leave. The revised regulations also allow employers to contact a physician without the employee’s permission to authenticate or clarify a medical certification after the employer has given the employee an opportunity to cure deficiencies in the certification, but an employer would need an authorization from the employee (or the employee’s family member with a serious health condition) to obtain medical information from a physician. Unlike the current regulations, which require an employer to contact an employee’s or family member’s physician only through a physician engaged by the employer, the revised regulations would allow employers to contact an employee’s or family member’s physician directly for authentication or clarification purposes, but contact with the physician may be made only by a health care provider, a human resources professional, a leave administrator, or a management official other than the employee’s direct supervisor.

The new regulations also address fitness-for-duty certifications in connection with employees returning from FMLA leaves taken because of their own serious health conditions. The regulations allow an employer to provide an employee taking FMLA leave with a list of essential job functions and require that the employee’s health care provider certify that the employee can perform those functions. The list of job functions must, however, be provided to the employee at the time the employee is notified that his or her absence qualifies as FMLA leave. In the case of intermittent leaves, an employer may require that the employee furnish a fitness-for-duty certification every thirty days if leave has been taken during that thirty-day period and reasonable safety concerns exist.

Practical Implications

The revisions to the FMLA regulations will go into effect on January 16, 2009. Because the new regulations make substantial changes to existing procedures and obligations relating to the FMLA and clarify the military family leave rights added to the FMLA earlier this year, employers covered by the FMLA (basically, all employers with fifty or more employees) should take advantage of the interim period before the new regulations go into effect to make sure that their family and medical leave policies and procedures are compliant with the new rules. Employers should review the family and medical leave policies in their employee handbooks and make changes as necessary. Supervisors, human resources personnel, and leave administrators should receive training or educational materials about the new regulations. Employers should revise their family and medical leave request, eligibility, certification, and designation forms to ensure that they include references to the recently enacted military family leave rights and are otherwise consistent with the new regulations. (DOL published with the revised regulations new forms that employers may use in connection with FMLA leaves.) Employers should also determine whether their leave-tracking procedures are capable of coordinating the different twelve-month periods applicable to military caregiver leave and other FMLA leaves. By preparing for compliance with the new regulations now, employers may be able to avoid costly mistakes when the revised regulations go into effect next year.