In January 2008, President Bush signed into law the expansive amendments to the FMLA which provide greater benefits to employees who have family members in the armed services. The new law became effective immediately.
On November 17, 2008, the DOL issued final regulations addressing the new military family leave as well as updating existing FMLA regulations.

Highlights of the Regulatory Changes in the Final Regulations:

New Regulations Re: Military Family Leave:

1) Military Caregiver Leave (also known as Covered Servicemember Leave):

Under the first of these new military family leave entitlements, eligible employees who are family members of covered servicemembers will be able 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. Based on a recommendation of the President’s Commission on Care for America’s Returning Wounded Warriors (the Dole-Shalala Commission), this 26 workweek entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.
The regulations provided that:

• This leave is available when a “covered servicemember” is undergoing medical treatment, recuperation, or therapy or is otherwise in outpatient status, or on the temporary disability list, for a “serious injury or illness” incurred in the line of duty on activity duty. A “serious injury or illness” is one incurred in line of duty that makes person unfit to perform duties of his/her office, grade, rank or rating.
• Stepsons, stepdaughters, and stepparents can take this leave.
• Leave is up to 26 workweeks during a “single 12 month period,” and such 12 month period begins on the first day the eligible employee take such leave and ends 12 months after that date regardless of the method used by the employer to determine FMLA leave entitlements and/or other FMLA qualifying reasons.
• A servicemember’s “next of kin” is entitled to this leave. The servicemember can designate who his or her next of kin is. If there is no designation, the regulations define “next of kin” as: the nearest blood relative, other than the servicemember’s spouse, parent, son, or daughter, in the following order: blood relatives with legal custody of service member, brothers, sisters, grandparents, aunts and uncles, and first cousins. All family members sharing the closes level of kinship are considered next of kin and are eligible for leave.
• The leave is permitted only for the serious injury or illness of current service members, not retired or permanently disabled servicemembers.
• The leave is a “per-servicemember, per-injury” entitlement so an employee may take 26 workweeks of leave to care for one servicemember in a “single 12 month period” and then take another 26 workweeks in a different “single 12-month period” to care for another covered servicemember or the same covered service member with a subsequent serious injury or illness.
• Same notice obligations as other FMLA leaves for serious health condition of a family member.
• Employers have right to obtain medical certification under this leave.
• If leave qualifies for both military caregiver leave and care for family member with serious health condition, regulations provide that employer must designate as military caregiver leave first.

2) Qualifying Exigency Leave:

The second new military leave entitlement helps family of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation.

The regulations provide that:

• Active duty” or “call to active duty” refers to an order to report to duty to support a contingency operation.
• This leave applies only to members of the National Guard or Reserves not to members of the Regular Armed Forces.
• This leave can be used for a son or daughter who is older than 18, and son and daughter include stepson and stepdaughter.
• The leave may be taken on an intermittent or reduced leave schedule basis.
• Qualifying exigencies include:
  a)   Short-term deployment – on seven or less days notice;
  b)   Military events and related activities – such as official ceremonies, programs or events  sponsored by the military.
  c)   Childcare and related activities – arising from the call to active duty or active duty such as arranging alternative childcare.
  d)   Financial and legal arrangements – needed to address a military member’s absence.
  e)   Counseling – by someone other than a healthcare provider for oneself, the military member, or child of covered military member, the need for which arises from the call to activity duty or active duty.
  f)   Rest and recuperation – up to 5 days of leave to spend time with a covered military member on short term temporary leave during deployment.
  g)   Post-deployment activities – to attend things like arrival ceremonies, reintegration briefings and other events sponsored by the military for a period of 90 days following termination of covered military members active duty status and addressing issues arising from death of a covered military member.
  h)   Other events – that employer and employee agree are a qualifying exigency.
• Employee’s ability to substitute accrued vacation, sick leave or PTO is determined by terms of employer’s leave policy.
• Employee must provide “sufficient information” to make employer aware of need for FMLA leave and anticipated timing and duration. “Sufficient information” includes that leave is for a particular qualifying exigency related to active duty or call to active duty of covered military member and anticipated duration of leave; and
• Employer must give eligibility of tie to employee within 5 business days of request and inform employee of rights and responsibilities under FMLA.

The final rule also includes two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family leave.

WH-382

WH-384

WH-385

Updates to Existing FMLA regulation:

• The Ragsdale Decision/Penalties: The final rule includes a number of technical regulatory changes to reflect current law following the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., which invalidated a penalty provision of the regulations. Ragsdale ruled that the current regulation’s “categorical” penalty for failure to appropriately designate FMLA leave, which in that case would have required the employer to provide an additional 12 weeks of FMLA-protected leave after the 30 weeks of leave the employee had already received, was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement that an employee demonstrate individual harm. Several other courts have also invalidated similar categorical penalties in other notice provisions of the current regulations. The final rule therefore removes these categorical penalty provisions and clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable.
• Light Duty: At least two courts have held that an employee uses his or her 12 week FMLA leave entitlement while on a “light duty” assignment following FMLA leave. Under the final rule time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement and that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.
• Waiver of Rights: The final rule codifies the Department’s longstanding position that employees may voluntarily settle or release their FMLA claims without court or Department approval. Although this is not a change in the law, the clarification is needed because a recent Fourth Circuit decision interpreted the Department’s regulations as prohibiting employees from either prospectively or retroactively waiving their rights. Prospective waivers of FMLA rights continue to be prohibited under the final rule.
• Serious Health Condition: The final rule retains the six individual definitions of serious health condition while adding guidance on three regulatory matters. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider.” Because the current rule is open-ended, the Tenth Circuit has held that the “two visits to a health care provider” must occur within the more-than-three-days period of incapacity. Under the final rule, the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit to the health care provider must take place within seven days of the first day of incapacity. A second way to satisfy the definition of serious health condition under the current regulations involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The final rule clarifies here also that the first visit to the health care provider must take place within seven days of the first day of incapacity. Thirdly, the final rule defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year since that provision is also open-ended in the current regulations and potentially subjects employees to more stringent requirements by employers.
• Substitution of Paid Leave: FMLA leave is unpaid. However, the statute provides that employees may take, or employers may require employees to take, any accrued paid vacation, personal, family or medical or sick leave, as offered by their employer, concurrently with any FMLA leave. This is called the “substitution of paid leave.” The current regulations apply different procedural requirements to the use of vacation or personal leave than to medical or sick leave. Complicating matters even further, the Department has treated family leave differently than vacation and personal leave. Accordingly, under the final rule, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic “paid time off”). 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. The employee is always entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave and the employer may waive any procedural requirements for the taking of any time of paid leave.
• Perfect Attendance Awards: The final rule changes the treatment of perfect attendance awards to allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way. This addresses the unfairness perceived by employees and employers as a result of requiring an employee to obtain a perfect attendance ward for a period during which the employee was absent from the workplace on FMLA leave.
• Employer Notice Obligations: The final rule consolidates all the employer notice requirements into a “one-stop” section of the regulations and reconciles some conflicting provisions and time periods under the current regulations. Further, the final rule clarifies and strengthens the employer notice requirements in order to better inform employees and allow for a better exchange of information between employers and employees. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook or upon hire); an eligibility notice; a rights and responsibilities notice; and a designation notice. In order to ensure employers are able to better inform employees under the new notice provisions, the final rule extends the time for employers to provide various notices from two business days to five business days.
• Employee Notice: The final rule modifies the current provision that has been interpreted to allow some employees to provide notice to an employer of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly. Lack of advance notice (e.g., before the employee’s shift starts) for unscheduled absences is one of the biggest disruptions employers point to as an unintended consequence of the current regulations. The final rule provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances. The final rule also highlights (without changing) the existing consequences if an employee does not provide proper notice of his or her need for FMLA leave.
• Medical Certification Process (Content and Clarification): The final rule, which is the result of significant stakeholder feedback (including a Fall 2007 meeting at the Department on medical certifications) recognizes the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of the HIPAA privacy rule to communication between employers and employees’ health care providers. Further, in response to specific concerns raised by employees about medical privacy, the Department has added a requirement to the final rule that specifies that the employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor. Further, employers may not ask health care providers for additional information beyond that required by the certification form. The final rule also improves the exchange of medical information by updating the Department’s options Form WH-380 to create separate forms for the employee and covered family members and by allowing – but not requiring – health care providers to provide a diagnosis of the patient’s health condition as part of the certification. In addition, the final rule specifies that if an employer deems a medical certification to be incomplete or insufficient, the employer must specify in writing what information is lacking and, give the employee seven calendar days to cure the deficiency. These changes will improve FMLA communications, protect the privacy of workers, and help ensure that the employees who need leave will get it and not be subject to repeated requests for additional information or be denied FMLA leave on a technicality.
• Medical Certification Process (Timing): The final rule codifies a 2005 DOL Wage and Hour Opinion letter that stated that employers may request a new medical certification each leave year for medical conditions that last longer than one year. The final rule also clarifies the applicable time period for recertification. Under the current regulations, employers may generally request a recertification no more often than ever 30 days and only in conjunction with an FMLA absence unless a minimum duration of incapacity has been specified in the certification, in which case recertification generally may not be required until the duration specified has passed. Because many stakeholders have indicating that the current regulation is unclear as to the employer’s ability to require recertification when the duration of a condition is described as “lifetime” or “unknown,” the final rule restructures and clarifies the regulatory requirements for recertification. In all cases, the final rule allows an employer to request recertification of an ongoing condition every six months in conjunction with an absence.
• Fitness-For-Duty Certifications: The current FMLA regulations allow employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. This is called a “fitness-for-duty” certification. The final rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.