Family and Medical Leave Act and Military Leave
Summary of Final Regulations Effective 1/16/09
November 17, 2008, the DOL issued final regulations under the Family and Medical Leave Act (FMLA).
Changes include:
- altering existing FMLA requirements for the employee’s personal health condition or the health condition of the employee’s family member, and
- expanding leave for family members of service members.
These regulations become effective January 16, 2009.
Highlights of Changes
- COVERAGE AND ELIGIBILITY
- KEY DEFINITIONS
- WAIVER OF RIGHTS AND OBLIGATION TO COMMUNICATE
- EMPLOYEE NOTICE REQUIREMENTS
- EMPLOYER NOTICE REQUIREMENTS
- MILITARY LEAVE
- CERTIFICATIONS
- CALCULATION OF LEAVE
Length of Service Requirement - Employers will “look back” 7 years prior to the date leave is to begin to determine 12-months of service.
Serious Health Condition (Continuing Treatment) - Whether such a condition causes an “incapacity” for FMLA leave is: (a) measured by the duration of the incapacity itself (more than 3 full consecutive days); (b) requires in-person treatment by a health care provider at least once within seven days of the first day of incapacity; and (c) requires either (i) a regimen of continuing treatment initiated by the health care provider during the first treatment or (ii) a second in-person visit to the health care provider for treatment (the necessity of which is determined by the health care provider) within 30 days of the first day of incapacity.
Serious Health Condition (Chronic Conditions) - A chronic condition is one that: (a) requires visits for treatment by a health care provider at least twice a year; (b) continues over an extended period of time (including recurring episodes of a condition); and (c) may cause episodic incapacity rather than a continuing period of incapacity.
Prenatal Care - The employee husband of a pregnant spouse is entitled to FMLA leave to care for the pregnant spouse who has severe morning sickness or other prenatal complications (and may need physical care) and to accompany her to prenatal doctors’ appointments (and may need to be driven or need psychological care).
Care For A Family Member - An employee may take leave to care for a family member if needed to provide physical and/or psychological care. The employee does not need to be the only individual or family member available to provide the care nor is the employee required to provide actual care.
WAIVER OF RIGHTS AND OBLIGATION TO COMMUNICATE
Responsiveness, Cooperation, and Resolution Obligations - In addition to other obligations mentioned elsewhere, employers are required to: (a) provide responsive answers to employee questions about employee rights and responsibilities; (b) discuss and resolve with an employee any dispute about whether leave qualifies as FMLA leave; and (c) document any such discussions and resolution and retain such documentation for 3 years.
Employees are required to: (a) respond to employer questions designed to determine whether an absence is potentially FMLA-qualifying; (b) consult with the employer in advance and make a “reasonable effort” to schedule foreseeable leave for planned medical treatment (whether continuous, intermittent, or reduced schedule) so as not to disrupt unduly the employer’s operations; and (c) discuss and resolve with the employer any dispute about whether leave qualifies as FMLA leave.
Method of Notice - A request for FMLA leave only needs to be verbal. An employer may, however, require an employee to comply with the employer’s usual and customary notice requirements.
Content of Notice - In requesting leave the first time for a particular FMLA-qualifying condition for which the employer has not previously provided FMLA leave to the employee, an employee does not need to mention the FMLA, but must provide sufficient information for an employer to reasonably determine whether the FMLA may apply. In subsequently requesting leave for a particular FMLA-qualifying condition for which the employer has previously provided FMLA leave to the employee, an employee must specifically reference either the qualifying reason for the leave or the need for “FMLA leave.”
General Notice (Poster/Policy) - The existing poster and written FMLA policy requirements have been combined into one general notice requirement. The employer must also distribute the general notice to employees by including it a handbook (or other written materials) or by providing it to each new hire. Electronic posting and distribution is permissible.
Eligibility Notice - Employers must provide eligibility notice to any employee who applies for FMLA leave informing the employee of his/her eligibility for FMLA leave. If the employee is not eligible, the notice must state at least one reason why the employee is not eligible. The eligibility notice must be provided within five business days after the first time in each of the employer’s FMLA leave year that an employee requests FMLA leave for a particular qualifying reason. During that same FMLA leave year, a new notice is required only if the employee’s eligibility status changes.
Rights and Responsibilities Notice - Employers must provide a rights and responsibilities notice each time an eligibility notice is required that includes the employer’s designated 12-month FMLA leave year, whether a certification and other documentation will be required, whether the employer will require the use of paid time off benefits while the employee is on leave, and a number of other rights and responsibilities of the employee.
Designation Notice - Employers must provide written notice to an FMLA qualifying employee either designating the leave as FMLA-qualifying or notifying the employee that the leave does not qualify as FMLA leave. This notice must be provided within 5 business days after the employer determines the leave is FMLA-qualifying. Specific designation information must be shared with the employee to confirm event eligibility or denial.
Serious Health Condition Certification - An employee must submit a complete and sufficient medical certification within 15 days. If it is timely submitted and is not complete or sufficient, the employer must provide the employee with seven days to cure the deficiencies and a list of what information is still needed. If the employee does not correct it within the cure period, leave can be denied.
Release to Work Certifications - A release to work can be required for continuous leave and intermittent leave.
Definitions Related to Family Relationships under Military Leave - The employee must be the “parent of a covered servicemember,” “son or daughter of a covered servicemember,” “next of kin of a covered servicemember,” and “son or daughter on active duty or call to active duty status.”
Definition of “Qualifying Exigency” under Military Leave - A qualifying exigency is a non-medical activity that is directly related to the covered military member’s active duty or call to active duty status. For an activity to qualify as an exigency, it must fall within one of seven categories of activities or be mutually agreed to by the employer and employee. The seven categories of qualifying exigencies are short-notice deployment (leave permitted up to seven days if the military member receives seven or less days’ notice of a call to active duty), military events and related activities, certain temporary childcare arrangements and school activities (but not ongoing childcare), financial and legal arrangements, counseling by a non-medical counselor (such as a member of the clergy), rest and recuperation (leave permitted up to five days when the military member is on temporary rest and recuperation leave), and post-deployment military activities.
Military Exigency Leave - Employers may require two different types of certification with respect to military exigency leave. One is a certification that the covered military member is a member of the National Guard or Reserves who is on active duty or called to active duty in support of a contingency operation. A copy of the military member’s active duty orders will contain the necessary information. Once an employee furnishes the certification, employers may not require the same certification again for subsequent absences related to the same active duty of that particular military member. The other certification is a statement from the employee (including available written support documentation) about the nature and details of the specific exigency, the amount of leave needed, and the employee’s relationship to the military member. DOL has developed a prototype form for the exigency certification. The employee must provide both certifications within 15 days absent unusual circumstances.
Military Caregiver Leave - An employee may take up to 26 weeks of military caregiver leave during a single 12-month period on a per-covered servicemember, per-injury basis (which may be taken continuously, intermittently, or on a reduced schedule basis). The single 12-month period is measured forward from the date an employee’s leave to care for the covered servicemember begins. Once a single 12-month period expires, the employee is eligible for another 26 weeks of military caregiver leave during a subsequent single 12-month period to care for a different covered servicemember or to care for the same covered servicemember if he/she incurs a subsequent serious injury or illness.
During any single 12-month period, the employee’s total leave entitlement is limited to a combined total of 26 weeks for all qualifying reasons under FMLA and military leave unless leave for FMLA health events occurs prior to the start of the 26 weeks.
Definition of “Active Duty or Call to Active Duty Status” - Active duty or a call to active duty status is only made to members of the National Guard or Reserve components or a retired member of the Regular Armed Forces or Reserve. Therefore, an employee may not take exigency leave if the servicemember is a member of the Regular Armed Forces.
Definition of “Covered Servicemember” - A covered servicemember is a current member of the Regular Armed Forces, National Guard, or Reserve, including those on the temporary disability retired list (TDRL), but not including former members or members on the permanent disability retired list. The servicemember must be receiving medical treatment or oversight by a Department of Defense or Veterans Affairs health care provider or by a Department of Defense TRICARE network or non-network authorized private health care provider.
Military Caregiver Leave-General Certification Requirements - Employers may require information from the health care provider and from the employee and/or covered servicemember to support military caregiver leave.
Source: SHRM Family and Medical Leave Act and Military Leave: Summary of Final Regulations