SC Lawyer, March 2009, #3. Just When You Thought You Understood the Family and Medical Leave Act.

• Author: By Eric Schweitzer and Luci Nelson

South Carolina Lawyer

2009.

SC Lawyer, March 2009, #3.

Just When You Thought You Understood the Family and Medical Leave Act

South Carolina LawyerMarch 2009Just When You Thought You Understood the Family and Medical Leave ActBy Eric Schweitzer and Luci NelsonImportant new Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009. 73 Fed. Reg. 67,934 (Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825). In addition to creating an entirely new entitlement program for Military Family Leave, the revisions are intended to improve employer-employee communications about the FMLA and help clarify employer-employee rights and responsibilities under the Act. Changes to military leave are the most extensive but will be addressed at the end of this article.

Revisions to the FMLA

Serious Health Condition

The revisions tweaked the definition of "serious health condition" by making changes to the definitions of incapacity, continuing treatment and chronic health condition.

To eliminate possible confusion, "incapacity and treatment" is defined as more than three consecutive "full" calendar days (not partial days) of incapacity, plus two visits to a healthcare provider. The first visit must occur within seven days of the onset of the incapacity. Both visits must occur within 30 days of the start of the incapacity, unless "extenuating circumstances" exist (such as where the employee is prevented from a follow-up visit within 30 days because the healthcare provider does not have any available appointments). A single visit to a healthcare provider will not qualify as a serious health condition unless the healthcare provider determines that additional visits or a regimen of continuing treatment (such as oxygen or a course of antibiotics) is necessary. A "treatment" means an in-person visit to a healthcare provider and does not include a phone call, letter, e-mail or text message with a healthcare provider.

To qualify as a "chronic" serious health condition, the employee must certify that he or she visited a healthcare provider at least two times per year for treatment of that condition. Employers may not require employees to make more than two visits per year to demonstrate a chronic condition.

Certification

The time frame during which employers should request certification is increased from two to five business days after receiving notice of the employee's need for leave. The employee must provide the certification within 15 calendar days of the employer's request. The burden to provide complete and sufficient certification is on the employee. If the employer determines that the certification is incomplete or insufficient, the employer must give written notice of the additional information necessary and must allow the employee seven calendar days to cure the deficiency. The employer may "deny" FMLA leave until the required certification is provided.

To strengthen employee privacy, an employee's immediate supervisor is banned from directly contacting the employee's healthcare provider for clarification or authentication of a certification. Instead, a healthcare provider, leave administrator, manager or human resources professional may contact the employee's healthcare provider to authenticate or clarify a certification, but under no circumstances may the employer request additional information beyond what was included in the original certification.

Where the serious health condition lasts longer than one year, the employer is permitted to request a new medical certification every 12-month FMLA period.

Although it is not required, DOL encourages the employer to provide a list of essential functions when it requires a medical certification so that the healthcare provider is able to more completely assess the employee's ability to do his or her job.

Notice requirements

To clear up confusing and conflicting provisions and time periods, the employer notice requirements are consolidated into one section, and DOL has provided optional prototypes of all notices (WHD Publication 1420, WH-381 and WH-382) in the appendices to the regulations. An employer may be required to provide the following notices:

(1) General Notice

An electronic general notice of the FMLA's provisions and information regarding the procedures for filing complaints is sufficient, provided that all employees and applicants have access to the information. An employer that has an employee handbook must place general notice in the handbook (including electronic handbooks). Employers without employee handbooks must provide the information online (if all employees have regular Internet access) or distribute a hard copy once a year.

(2) Eligibility Notice

When there is a request for FMLA leave or when an employer becomes aware that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee within five (up from two) business days whether the employee is eligible for FMLA leave, absent extenuating circumstances. If the employee does not qualify for FMLA leave, the notice must provide at least one reason why the employee is not eligible (i.e., the employee has not been employed for at least 12 months by the employer or has not worked the requisite 1,250 hours). Eligibility notice may be given orally or in writing.

(3) Rights and Responsibilities Notice

Each time eligibility notice is provided, the employer must provide written notice of the employee's obligations and the consequences of a failure to meet these expectations.

(4) Designation Notice

Employers must notify employees when leave is (or is not) designated as FMLA leave within five business days of when the employer has sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason. Only one designation notice is required for each FMLA-qualifying reason per leave year, regardless of whether the leave is intermittent or continuous.

Notification to the employee of the hours counted against the FMLA leave entitlement may be provided orally or in writing. Oral notification must be followed up by written notification, which may take the form of a notation on the employee's pay stub, no later than the following payday.

Changes to Miscellaneous Provisions

Leave requests

Under the previous regulations, an employee had up to two business days after an initial absence to notify the employer of the need to take FMLA leave. However, an employee must now follow the employer's customary call-in procedures for reporting an absence unless unusual circumstances exist. This may mean advance or same-day notice.

Paid leave

While FMLA leave is unpaid leave, the Act allows for substitution of paid leave. The new rules treat all forms of paid leave the same, meaning that an employer may require an employee who wants to use paid time off during FMLA leave to follow the company's uniform policy for use of such leave.

Settlement agreements and waivers

An employee may settle or release FMLA claims without approval from a court or agency, but waivers of prospective rights under the FMLA are prohibited.

Employer penalties

The Act complies with the United States Supreme Court's decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), to remove old penalties for failing to designate leave as FMLA. The revisions permit the imposition of liability on an employer whose failure to follow the notification rules causes individualized harm to an employee.

Perfect attendance awards

An employer is not required to give a perfect attendance award or other bonus to an employee who took FMLA leave, but only if the employer treats employees taking non-FMLA leave in the same way.

Light duty work

An employer may not require an employee to accept a light duty assignment in lieu of taking FMLA leave. Time that an employee spends on voluntary light duty work does not count as FMLA leave. The employee's right to job restoration is held in abeyance during the period of light duty work or until the end of the applicable 12-month FMLA leave year.

Military Family Leave Entitlements

Military Caregiver Leave

Military Caregiver Leave permits an eligible employee to take up to 26 workweeks of leave during a "single 12-month period" to care for a family member who is a "covered servicemember" with a serious illness or injury incurred in the line of duty. This 26-workweek entitlement is a special extension of FMLA job-protected leave beyond the 12 weeks of standard FMLA leave. (This means that if, for example, the employer uses a calendar year method for standard FMLA leave, an employee could potentially take up to 38 weeks of FMLA leave in one calendar year (e.g., 12 weeks for the employee's own serious health condition, plus 26 weeks for military caregiver leave), even though the employee is entitled to a combined total of up to 26 weeks of all types of FMLA during the "single 12-month period." See FMLA, 73 Fed. Reg. at 67,970-71 for a detailed explanation of how to calculate an employee's entitlement to leave.

To be eligible for this type of leave, (1) the employee's family member must be undergoing medical treatment, recuperation or therapy; otherwise in outpatient status; or otherwise on the temporary disability retired list, (2) due to an injury or illness that occurred in the line of active duty in the Armed Forces, including service in the National Guard or Reserves, (3) that may render the member medically unfit to perform the duties of his or her office, grade, rank or rating. 29 U.S.C. § 2611(16), & (19) (2008).

Military caregiver leave covers more extended family members than standard FMLA leave. Under this program, an eligible employee may be the spouse, son, daughter, parent or next of kin of the covered servicemember. For purposes of military caregiver leave, the definition of a "son or daughter" is broader than for standard FMLA leave. The son or daughter may be of any age and is the covered servicemember's biological, adopted or foster child; stepchild; legal ward; or a child for whom the covered servicemember has acted in loco parentis. A parent for purposes of military caregiver leave is the covered servicemember's biological, adoptive, step or foster father or mother, or any other person who acted in loco parentis for the servicemember. Notably, the term does not include parents "in law."

A servicemember's "next of kin" is the nearest blood relative, other than spouse, parent or child, in the following priority: blood relatives who have been granted legal custody, siblings, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative for military caregiver leave purposes under the FMLA. All family members sharing the closest level of consanguinity with the servicemember shall be considered the next of kin, unless the service member has specifically designated an individual as the next of kin. For example, if a servicemember has three first cousins, all three will be considered the servicemember's next of kin. Alternatively, a servicemember may designate one blood relative to be his or her "nearest blood relative" based on the closeness of their personal relationship. An employer may confirm an employee's status as a covered servicemember's "next of kin" by seeking reasonable documentation, such as a simple statement from the employee or from the servicemember.

How is military caregiver leave calculated?

For purposes of calculating leave entitlement, the 12-month period starts on the first day the eligible employee takes military caregiver leave and ends 12 months after that date, regardless of the method used by the employer to calculate the employee's 12 workweeks of standard FMLA leave. (Employers have several options for determining the 12-month period for standard FMLA leave, including calendar year, fiscal year, year starting on an employee's date-of-hire, or a "rolling" 12-month period measured backward from the date an employee initially uses FMLA leave.) There is no "carryover" of military caregiver leave from year to year, meaning that if an eligible employee begins but does not use the entire entitlement during the "single 12-month period," the remaining workweeks of leave are forfeited.

The 26-workweek entitlement is a per-covered-servicemember, per-injury entitlement. Thus, an employee may be eligible to take 26 workweeks of leave in a "single 12-month period" to care for one servicemember and then another 26 workweeks of leave during a different "single 12-month period" to care for the same servicemember with a subsequent injury or to care for a different covered servicemember. However, an employee does not receive multiple 26-workweek entitlements for multiple injuries incurred in a single incident or for a later aggravation of a covered servicemember's previous serious injury or illness.

Who determines how leave should be counted?

The regulations establish that it is the employer's responsibility to designate leave as FMLA-qualifying and to give notice of the designation to the employee. If the leave is military caregiver leave that also qualifies as FMLA leave taken to care for a family member with a serious health condition, then the employer must designate such leave as military caregiver leave first.

What are the requirements for certification of military caregiver leave?

When an employee seeks military caregiver leave, an employer may require certification from an authorized healthcare provider, including (1) a Department of Defense (DOD) healthcare provider; (2) a Veterans Affairs healthcare provider; (3) a DOD TRICARE network authorized private healthcare provider; or (4) a DOD non-network TRICARE authorized private healthcare provider. DOL has created an optional form, Form WH-385, for employers to use to obtain appropriate certification information. Additionally, an employer must accept, in lieu of Form WH-385 or the employer's own certification form, as sufficient certification "invitational travel orders" (ITOs) or "invitational travel authorizations" (ITAs) issued by the DOD for a family member to join an injured or ill servicemember at his or her bedside.

Exigency Leave

Exigency Leave (also called Active-Duty Leave) is intended to help family members of those in the National Guard and Reserves manage the members' affairs and is triggered when an eligible employee's immediate family member is called to active duty in support of a contingency operation. An eligible employee may use all or part of the regular allotment of 12 weeks of FMLA leave for a qualifying exigency triggered by the employee's relative (spouse, son, daughter or parent) being on active duty or being notified of an impending order to active duty. 29 U.S.C. § 2612(a)(1)(E).

In defining "active duty," the regulations specify that the qualifying exigency leave entitlement extends only to employees who are family members of those in the Reserves and the National Guard and certain retired members of the Regular Armed Forces and retired Reserve. This type of leave is not available for family members of the Regular Armed Forces on active duty status. Additionally, a "call or order to active duty" refers only to a federal call to active duty, as opposed to a state call to active duty.

The regulations separately define a "son or daughter on active duty or call to active duty status" for the purpose of qualifying exigency leave as an employee's biological, adopted or foster child; stepchild; legal ward; or child for whom the employee acted in loco parentis, who is on active duty or called to active duty status, and who is of any age.

What are the "qualifying exigencies"?

The regulations identify a list of eight specific circumstances for which an eligible employee may take qualifying exigency leave: (1) Short-notice deployment. Where the notification of deployment is seven days or less, leave may be taken to address any issues that arise from deployment. (2) Military events and related activities. An eligible employee may take leave to attend any official military event or family assistance programs or briefings sponsored by the military or the American Red Cross that are related to the active duty status of a covered military member. (3) Childcare and school activities. Leave may be taken to arrange childcare or attend a variety of school activities for a biological, adopted or foster child; a stepchild; legal ward of a covered military member; or a child for whom the covered military member acts in loco parentis, who is either under 18 or who is incapable of self-care because of a mental or physical disability. (4) Financial and legal arrangements. An eligible employee may take leave to make or update financial or legal affairs to address the absence of a covered military member while on active duty. This may include preparing and executing financial and healthcare powers of attorney or preparing a will or living trust. (5) Counseling. An eligible employee may take leave to attend non-healthcare provider counseling for the employee, the covered military member or the covered military member's child. The need for counseling must arise from the active duty or call to active duty status of the covered military member. (6) Rest and recuperation. Up to five days of leave may be taken to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. (7) Post-deployment activities. An eligible employee may take leave to attend arrival ceremonies, reintegration briefings and other military-sponsored events for a period of 90 days after a covered military member's active duty terminates. This category also permits leave to address issues that arise from the death of a covered military member while on active duty, such as recovery of the body and making funeral arrangements. (8) Additional activities. This category covers leave to address other events that arise out of the covered military member's active duty where the employer and employee agree that such leave shall qualify as an exigency and agree on the time and duration of the leave.

What are the requirements for certification of qualifying exigency leave?

When an employee seeks qualifying exigency leave, an employer may require that the employee provide a copy of the covered military member's active duty orders or other documentation issued by the military that indicates that the member has been called to active duty and the dates of the active duty service. This information needs to be provided to the employer only for the first time an employee requests leave because of a qualifying exigency. DOL has created an optional form, Form WH-384, for employees to use in obtaining certification.

Conclusion

Many employment lawyers will confess they receive a significant number of client inquiries about employee and employer obligations and rights under the FMLA. These new and significantly expanded regulations merit close attention and careful study in anticipation of a resurgence of such inquiries, particularly given that employers will likely contact counsel to revise employer policies, procedures and forms to bring them into compliance with the new regulations.

Eric Schweitzer and Luci Nelson practice with Ogletree, Deakins, Nash, Smoak & Stewart, PC in Charleston.