New FMLA Regulations Go Into Effect January 16, 2009

by Betsy Davis

Employers - especially those who employ military family members - should train staff about the new Family and Medical Leave Act ("FMLA") regulations. On November 17, 2008, the U.S. Department of Labor (DOL) published its final rules implementing amendments to the FMLA. These new regulations go into effect on January 16, 2009 and provide extended and new categories of leave rights to military family members as well as clarify definitions, benefits and requirements that affect all FMLA eligible employees. In highlight form, the regulations provide as follows:

Regulations Affecting Military Families

• FMLA protection is expanded to include family members caring for a "covered service member" with a serious injury or illness incurred in the "line of duty on active duty." These family members are able to take up to twenty six (26) work weeks of leave in a twelve (12) month period. For example, the wife of a U.S. Marine who is recovering from surgery to repair damage as a result of a gun shot wound sustained in the line of duty may now be eligible to take up to twenty six (26) weeks, not only twelve (12) weeks, of leave to care for her husband.
  
• Family members of personnel on active duty may also take FMLA leave for "qualifying exigencies," defined as: (1) short notice deployment, (2) military events and related activities, (3) child care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave. For example, the husband of an active duty Army Captain who is notified that she must deploy to Iraq in two (2) weeks may use FMLA leave to assist his wife in preparation for deployment.
  
• Exigent Circumstances Leave is not available to family members of individuals in the regular Armed Forces, but rather extends only to those covered military members called or ordered to active duty as part of a contingency operation - retired members of the regular Armed Forces, members of the Reserves, including the retired Reserves and/or members of the National Guard.

Regulations Affecting All FMLA Eligible Employees

• If an employee voluntarily performs "light duty" work, time spent doing such work will not count against an employee's FMLA leave entitlement and the employee's right to job restoration is held in abeyance during the light duty period. Prior to this regulation becoming effective, the Court had found that periods of "light duty" work may be counted by the employer as FMLA leave. For example, where a Certified Nursing Assistant ("CNA") is out of work for three (3) weeks due to an FMLA qualifying reason, returns to work but cannot lift the number of pounds required as a CNA and therefore performs light duty work for nine (9) additional weeks, that CNA will have nine (9) weeks of FMLA leave remaining in the twelve (12) month period.

• Employees who take intermittent FMLA leave for planned medical treatment have a statutory obligation to make a "reasonable effort" to schedule such leave so as not to disrupt unduly the employer's operations. For example, a Certified Public Accountant may be required to schedule elective surgery in May instead of April because of the employer's heavy work flow during tax season.
  

• Employers may deny "perfect attendance" awards to employees who do not have perfect attendance because they took FMLA leave, provided the employer treats employees taking non-FMLA leave in the same way. For example, if an employer gives perfect attendance awards to employees who have no "unexcused" absences and pursuant to the employer's policies "excused" absences include preapproved time away from work for routine doctor visits, the employer could not refuse to give an award to employees who miss work for FMLA qualifying reasons. But, if an employer gives perfect attendance awards to only those employees who complete every shift scheduled during a particular period, the employer could deny that perfect attendance award to employees who take FMLA leave during that period.
  

• Employers may contact an employee's health care provider directly, but only for clarification and authentication of medical certification. The employer representative communicating with the health care provider must be a health care provider, a human resource professional, a leave administrator or a management official, but may not be the employee's direct supervisor. The employer may not request additional information beyond that included in the certification form.
  

• The terms and conditions of an employer's paid leave policies apply and must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave.

Employers should train managers and human resources staff regarding revising their handbooks to address the new FMLA regulations. The extended leave to families of military personnel will be the largest issue addressed. Until employer handbooks can be reviewed and revised, employers should post notice of the new regulations. A sample FMLA poster can be found on the DOL's website at:

http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

For assistance with training sessions and handbook review, please call or e-mail Betsy Davis at (804) 697-2035.