September 17, 2018
Author: Kelly S. Lawrence
Organization: Frantz Ward LLP
On November 17, 2008, the Department of Labor issued much-anticipated final regulations that significantly changed the obligations of both employers and employees under the Family and Medical Leave Act (FMLA). The new regulations, which went into effect on January 16, 2009, represented the first major update to the regulations since the Act was passed in 1993. The 2009 regulations and their extensive introductory explanation (all totaling over 200 pages) remain available from the DOL at http://www.dol.gov/whd/fmla/finalrule.htm.
In addition to overhauling the obligations and procedures for traditional types of FMLA leave, the 2009 regulations also explained and implemented two new types of servicemember leave. Then, on October 28, 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which further expanded the two new military family leave entitlements under the FMLA.
Further revisions to the regulations, which incorporated the 2010 changes, were issued on February 6, 2013, and they became effective on March 8, 2013. The 2013 revised regulations also incorporated amendments to the FMLA that provide special eligibility provisions for airline flight crew employees. The 2013 revised regulations – which incorporate the 2009 regulations but, importantly, not the extensive 2009 introductory guidance – and related guidance documents are available from the DOL at http://www.dol.gov/WHD/fmla/2013rule/. Additional guidance documents, and updated certification forms, are available at http://www.dol.gov/whd/fmla/. The most significant changes to traditional types of FMLA leave implemented by the 2009 and 2013 regulations are discussed below, as well as the recent changes to the two new types of servicemember leave. As the flight crew requirements apply only to a limited group of employers, they will not be addressed.
THE FMLA REGULATIONS REGARDING TRADITIONAL LEAVE
I. Employer Burdens: Notice Requirements
The new regulations clarify that an employer must provide four different types of FMLA notice:
(1) general notice; (2) eligibility notice; (3) rights and responsibilities notice; and (4) designation notice.
A. An employer must provide general notice to an employee of his or her FMLA rights upon hire if the employer does not have a handbook or other written materials regarding benefits. An employer who has a handbook or other written benefits materials must include general notice in those materials. 29 C.F.R. §825.300(a)(3).
1. Postings – The new regulations do not alter the requirement that every covered employer must post a notice providing information about the FMLA. However, an employer may now post this information electronically (in lieu of posting a hard copy) if employees and applicants have access to the information. §825.300(a)(1). It is important to note that the regulations still require that applicants also have access to the posting, so the posting of a hard copy may still be necessary if electronic access is limited to employees only. Id.
2. Sample posting – The Department of Labor has issued a posting document, available at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf. It is important to note that this poster was updated by the DOL in February 2013, and employers should make sure that they are using this updated version.
3. Written notice – The regulations clarify that an employer can also use the posting document as a general notice to be distributed upon hire or included in the handbook or other materials. The regulations state that an employer meets its obligation to provide written general notice as long as its notice contains, at a minimum, the information contained in the posting document.
4. Other languages – Where an employer’s workforce is comprised of a “significant portion” of workers who are not literate in English, the employer must provide the general notice in a language in which the employees are literate. §825.300(a)(4). This translation requirement also applies to other types of FMLA notice.
B. Under the new regulations, employers must provide FMLA eligibility notice to an employee after learning of the employee’s FMLA-qualifying condition within five (5) business days, absent extenuating circumstances. This expands the former two (2) day requirement. §825.300(b)(1). (Note that special eligibility rules and hours-of-service requirements for flight crew employees are provided at §825.801.)
1. Reason for ineligibility – If an employer determines that an employee is not eligible for FMLA leave, the employer must provide at least one reason for its determination. §825.300(b)(2).
2. How often notice must be provided – Eligibility notice must be provided at the commencement of the first instance of leave in the 12-month FMLA leave year for each FMLA qualifying reason. §825.300(b)(1). All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12- month period. In other words, eligibility to take leave for a given FMLA qualifying reason does not change during the leave year. §825.300(b)(1). If an employee gives notice of the need for leave for another qualifying reason in the same FMLA leave year and the employee’s eligibility has not changed, additional eligibility notice is not required. However, if an employee’s eligibility status changes, new notice is required within five (5) business days of the employee’s notice of the need for leave after the change. §825.300(b)(3).
3. Sample notice – The DOL has provided a sample eligibility notice, which is combined with the sample rights and responsibilities notice (described below), available at http://www.dol.gov/whd/fmla/. Eligibility notice can be issued orally or in writing. §825.300(b)(2).
C. The new regulations use the term “rights and responsibilities” notice to refer to the existing requirement that an employer provide notice detailing the specific expectations and obligations of the employee in regards to his or her specific FMLA leave request and explaining any consequences of a failure to meet those obligations.
1. When notice must be provided – Employers are required to provide this notice at the same time that eligibility notice is given. §825.300(c)(1).
2. What information must be included – Rights and responsibilities notice must include information regarding: the applicable leave year and the fact that the leave may be counted against the employee’s FMLA leave entitlement; certification requirements; the employee’s right to substitute paid leave and any conditions of substitution, as well as the employee’s right to otherwise take unpaid leave; any requirements that the employee pay health benefits premiums; the employee’s status as a “key employee,” if applicable; the employee’s rights to the maintenance of benefits and job restoration; and the employee’s obligation to reimburse the employer for health benefits premiums if the employee fails to return to work. §825.300(c)(1).
3. Updated notice – If the information in the rights and responsibilities notice changes, the employer must provide the employee with written notice of the change within five (5) business days of receipt of the employee’s first notice of need for leave subsequent to any change. For example, if the initial leave period was paid and a subsequent leave period will be unpaid, the employer may need to describe the employee’s new responsibility to make health benefits premium payments. §825.300(c)(4).
4. Sample notice – The DOL has provided a sample rights and responsibilities notice, which is combined with the sample eligibility notice and can be adapted as appropriate, available at http://www.dol.gov/whd/fmla/. Rights and responsibilities notice can be distributed electronically. §825.300(c)(6). D. The new regulations use the term “designation” notice to refer to the existing requirement that an employer inform an employee whether his or her requested leave qualifies as FMLA leave. This notice must be provided within five (5) business days of making an FMLA leave determination, which expands the former two (2) day window. §825.300(d)(1).
1. Same time as eligibility notice – Where an employer has adequate information to designate leave as FMLA-qualifying, designation notice may be provided at the same time as eligibility notice. §825.300(d)(2).
2. How often notice must be provided – Only one designation notice is required for each FMLA-qualifying reason per leave year, regardless of whether leave is taken as a continuous block of leave or on an intermittent or reduced leave schedule basis. §825.300(d)(1).
3. Substitution of paid leave – If the employer will require that the employee substitute paid leave, the substitution designation must also be provided in the notice. §825.300(d)(1).
4. Amount of leave – If the amount of leave needed is known at the time the employer designates the leave as FMLA-qualifying, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA-leave entitlement. §825.300(d)(6). If up-front notice is not possible, employers must inform employees of the number of hours counted against his or her FMLA leave entitlement only upon request, but not more often than once every 30 days. Id. Employers may inform employees of this information orally, with follow-up written notification. The written notification requirement can be met by a simple notation on the employee’s next pay stub. Id.
5. Fitness-for-duty certification – If an employer requires fitness-for-duty certification for an employee to be restored to his or her job after taking FMLA leave, written notice of this requirement must be provided with the designation notice. §825.300(d)(3). If an employee handbook or other written documents clearly provide that a fitness-for-duty certification is required, the employer need only give oral notice of this requirement. Id.
6. Essential functions – Under the new regulations, a fitness-for-duty certification may go beyond certifying that the employee no longer has a serious health condition. Employers may now require that fitness-for-duty certification address the specifics of an employee’s ability to perform the essential functions of his or her job. However, if the employer will require a fitness-for-duty certification that addresses essential functions, the employer must designate the essential functions of the employee’s position in the designation notice. §825.300(d)(3).
7. Updated notice – If the information in a designation notice changes (for example, if an employee exhausts his or her FMLA leave entitlement), the employer must provide the employee with written notice of this change within five (5) business days of receipt of the employee’s first notice of need for leave subsequent to any change. §825.300(d)(5).
8. Sample notice – The DOL has provided a sample designation notice, which can be adapted as appropriate, available at http://www.dol.gov/whd/fmla/. Designation notice must be issued in writing. If leave is not designated as FMLA-qualifying, a simple written notice is sufficient. §825.300(d)(4).
9. Retroactive designation – The new regulations codify the Supreme Court’s 2002 holding in Ragsdale v. Wolverine Worldwide, Inc. by specifying that employers may retroactively designate leave as FMLA-qualifying, so long as such designation does not cause harm to the employee. §825.301(d). The concept of “provisional” designation of leave as FMLA-qualifying is eliminated from the new regulations.
II. Employee Burdens: Notice Requirements
The new regulations maintain the requirement that employees provide at least 30 days’ advance notice of the need for FMLA leave, or notice “as soon as practicable” where 30 days is not practicable or where the leave is not foreseeable. §§825.302(a), 825.303(a).
A. Reasonable employer inquiries – The new regulations require that an employee respond to reasonable employer inquiries regarding the need for FMLA leave, for purposes of designation of the leave as FMLA-qualifying. §§825.301(a), (b), 825.302(c).
B. “As soon as practicable” time frame is shortened – The regulations establish a shorter notice period for an employee who requires foreseeable leave, but for whom 30 days’ notice is not practicable. Such an employee must provide notice “as soon as practicable,” and this is now defined as the same or next day, rather than the old definition of one (1) or two (2) business days. More time may be necessary in unusual situations. §825.302(b). In instances where an employee does not give 30 days’ notice of foreseeable leave, the new regulations require the employee to explain, upon request of the employer, why 30 days’ advance notice was not practicable. §825.302(a).
C. Call-in requirements – An employer is now expressly permitted to require that employees comply with the employer’s normal and customary notice and procedural requirements for calling-in and requesting leave, absent “unusual circumstances.” §825.302(d). An employee’s failure to comply justifies an employer’s delay or denial of leave, provided the employer’s notice requirements do not require notice sooner than the 30-day notice requirement detailed above. Id.
D. Unforeseeable leave – For unforeseeable leave, the regulations state that in providing notice “as soon as practicable,” an employee should generally be able to do so within the employer’s normal and customary requirements. Again, the facts and circumstances of the employee’s case must be taken into account. §825.303(a).
E. Information that the employee must include – As under the former regulations, employees do not need to mention the FMLA by name to trigger its protection for a given absence. An employee, however, may need to provide specific information to trigger the employer’s obligations. The new regulations provide that, depending upon the circumstances, an employee’s notice of his or her need for leave may need to include: that a condition renders the employee (or family member) unable to work (or perform daily activities); that the employee is pregnant or has been hospitalized overnight; the anticipated duration of the absence; and whether the employee (or family member) is under the continuing care of a health care provider. §§825.302(c), 825.303(c). Not all of this information may be required in all circumstances, and an employer may be obligated to inquire further about whether an absence is FMLA-qualifying. In general, an employee cannot merely call in “sick” and trigger a duty for the employer to inquire further. Id.; §825.303(b).
III. Employee Eligibility
A. Breaks in service – When measuring the 12-month employment requirement, employers are no longer required to count work performed before a break in service of seven (7) years or more, although an employer may count all prior employment if it does so for all employees. §§825.110(b)(1), (4). Exceptions are made and prior employment is counted for breaks in service that are required by military service that is covered by USERRA, as well as where the employee and employer enter into a written agreement regarding the employer’s intention to rehire the employee after a break in service. §825.110(b)(2). The 1,250 hours-of-work requirement is similarly changed so that credit is given for USERRA-covered military service. §825.110(c)(2).
B. Change in eligibility during leave – The new regulations clarify that employees who become eligible for FMLA protection while in the middle of non-FMLA leave may acquire FMLA protection from the time of eligibility forward. §825.110(d).
C. Ineligible employees cannot be “deemed” eligible – In accordance with decisions by several federal appellate courts, the new regulations remove the former provision authorizing the Department of Labor to “deem” employees eligible for FMLA leave, who would otherwise be ineligible, based upon an employer’s failure to provide proper eligibility notice.
IV. Holidays During FMLA Leave
Under the new regulations, when an employee needs less than a full week of FMLA leave, and a holiday falls within the partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee’s FMLA leave entitlement if the employee would not have otherwise been require to report for work on that day. §825.200(h). Holidays that fall during a full week of leave can still be counted against an employee’s FMLA leave entitlement.
V. Definition of “Serious Health Condition”
The historical definition of “serious health condition” is retained, but the new regulations make two important clarifications.
A. Continuing treatment – The new regulations modify the requirements of “continuing treatment” for purposes of establishing a serious health condition. For a serious health condition involving incapacity of more than three days, treatment must consist of either
(a) two doctor visits within a 30-day period from the start of the incapacity; or (b) one doctor visit with a regimen of continuing treatment. §825.115(a). Under either prong, the initial doctor visit must occur within seven (7) days of the start of incapacity. §825.115(a)(3).
B. Chronic condition – The new regulations also provide that for a “chronic condition” to qualify as a serious health condition, the condition must require at least two (2) visits per year to a health care provider. §825.115(c).
VI. Certification Process
A. The employer’s timeline for requesting certification –Employers are now given five (5) business days to request medical certification after notice of the need for FMLA leave, which is an increase from the former two (2) day time frame. §825.305(b).
B. The employee’s timeline for returning certification – In all cases, an employer can now require that an employee return the certification within fifteen (15) days after the request unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts. §825.305(b). Additionally, an employer may voluntarily waive the 15-day requirement. Id.
C. Insufficient or incomplete certification – The new regulations clarify that certification is insufficient or incomplete where information is vague, ambiguous, or non-responsive, or when applicable entries on a certification form have not been completed. §825.305(c). Where certification is insufficient or incomplete, an employer must notify an employee in writing of what additional information is necessary and must provide seven (7) days for the employee to cure a deficiency, unless this time frame is not practicable under the circumstances despite an employee’s diligent, good faith efforts. §825.305(c). The employer may deny FMLA leave if the deficiency is not cured by the employee within seven days, unless the employee is unable to do so despite diligent, good faith efforts. §825.305(d).
D. Certification forms – The regulations also designate additional information that can be required for certification, including the health care provider’s specialization and designation of whether intermittent or reduced schedule leave is medically necessary. §825.306(a). Additionally, a health care provider can choose – but cannot be required – to provide information on the employee’s symptoms and to identify a diagnosis. §825.306(a)(3).
The Department of Labor has issued sample certification forms for both an employee’s serious health condition and a family member’s serious health condition, available at http://www.dol.gov/whd/fmla/. The DOL has updated its certification forms to account for the 2013 changes to the regulations.
E. Employer may contact the health care provider – Employers may not require employees to sign a release of their medical information as a condition of taking FMLA leave. §825.306(e). However, if an employee chooses to provide HIPAA-compliant consent, the employer’s health care provider, a manager, leave administrator, or HR professional – but not the employee’s immediate supervisor – can contact a health care provider to clarify or authenticate a certification. §825.307(a). The employer may not ask for additional information beyond that required on the certification form, and employer must first allow the employee the opportunity to cure any deficiencies before contacting the health care provider. Id. These rules also apply for authenticating fitnessfor- duty certifications. §825.312(b).
F. Frequency of recertification – If the minimum duration of a medical condition is 30 days or more, and regardless of whether leave is taken in a single block or on an intermittent or reduced schedule basis, employers may request recertification of the condition every six (6) months in connection with an employee’s absence, including circumstances in which the employee’s condition is a chronic or lifetime condition. §825.308(b). The regulations retain the former rules allowing for more frequent recertification in many instances. See generally §825.308. Further, if a serious health condition that is the basis for an employee’s FMLA-qualifying leave lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year. §825.305(e).
G. ADA procedures – Where a serious health condition may also be a disability, employers are not prevented from following the procedures under the Americans with Disabilities Act (ADA) for requesting medical information. §825.306(d). Employers can use the information obtained through the ADA procedures when making FMLA eligibility or designation decisions. Id.
H. Safety concerns – Employers can require employees on intermittent or reduced schedule leave to resubmit fitness-for-duty certification once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took leave. §825.312(f).
VII. Substitution of Paid Leave
The new regulations permit employers to apply their normal policies and requirements for taking paid leave when an employee substitutes accrued paid leave for unpaid FMLA leave, regardless of the type of paid leave substituted. §825.207(a). Under the former regulations, employers were prohibited from imposing any additional limits on the substitution of paid vacation or personal leave. The new regulations treat all types of leave in the same manner, and employers may apply limits to the substitution of all types of paid leave. Notice of such requirements must be included in an employer’s rights and responsibilities notice to employees. §825.300(c)(iii). An employee who does not meet the employer’s conditions for paid leave remains entitled to take unpaid FMLA leave. §825.207(a).
VIII. Intermittent Leave
A. Duty to avoid undue disruptions – Employees who take intermittent leave now “must make a reasonable effort to schedule the leave so as not to disrupt unduly the employer’s operations.” §825.203. Under the former regulations, an employee need only “attempt to schedule their leave so as not to disrupt the employer’s operations.”
B. Increments for calculating leave – In calculating intermittent leave, employers need not use the smallest increments used by their payroll system. §825.205(a)(1). Rather, employers must use the smallest increments used to record other types of leave, provided the increment is not greater than one hour. Id.
C. Physical impossibility – The new regulations also provide a “physical impossibility” exception for calculating the amount of intermittent FMLA leave taken by employees. Where it is physically impossible for an employee to commence or end work mid-way through a shift (e.g., for flight attendants or railroad conductors), the entire period that the employee is forced to be absent is designated as FMLA leave. §825.205(a)(2). The Department of Labor’s commentary on this new rule states that the rule is to be interpreted narrowly.
IX. Light Duty
Time spent performing “light duty” work does not count against an employee’s FMLA entitlement under the new regulations. An employee performing light duty retains his or her right to take FMLA leave with job restoration rights until he or she exhausts FMLA leave or until the end of the 12-month FMLA leave year. §825.220(d).
X. Achievement Bonuses
If an employer offers bonuses or other payment based on the achievement of a specified goals, such as hours worked, products sold, or perfect attendance, and an employee does not meet the goal due to FMLA leave, the new regulations state that the bonus or payment may be denied. §825.215(c)(2). However, if the employer denies the bonus, it must also deny the bonus to employees on “equivalent leave status” who take leave for reasons that are not FMLA qualifying. Id. For example, if employees remain entitled to a “perfect attendance” bonus when they take vacation leave, paid time-off, or sick leave, an employee taking FMLA leave cannot be disqualified where he or she substitutes these types of leave for FMLA leave. Similarly, if an employer disqualifies all employees on unpaid leave from receiving an achievement bonus, the employer may also deny bonuses to an employee who takes unpaid FMLA leave.
XI. Definition of “Health Care Provider”
The definition of “health care provider” is clarified to include physician’s assistants. §825.125(b)(2). Further, the regulations eliminate the requirement that physician’s assistants operate “without supervision by a doctor or other health care provider.”
XII. Waivers of Rights
Employees may voluntarily settle, waive, and release FMLA rights that arose prior to the date of an agreement to do so, without court or Department approval. An employee cannot settle, waive, or release prospective FMLA rights. §825.220(d).
On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). The NDAA provided for two new types of FMLA leave associated with the military service of an employee’s family member. The initial FMLA regulations, effective January 2009, implemented and explained these new types of servicemember leave. Then, on October 28, 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which included provisions further expanding military family leave entitlements under the FMLA. The 2013 regulations encompass these further changes and provide additional clarification regarding both types of servicemember leave.
Both types of servicemember leave may be taken on an intermittent or reduced schedule basis, and employers may require certification for both types of leave.
Though it is beyond the scope of this presentation, note that Ohio has enacted a state military family leave law that largely – but not entirely – parallels the servicemember leave provisions of the FMLA. Accordingly, an employee’s rights under state law must be considered as well. Ohio Rev. Code Ch. 5906, effective 7/2/10.
I. Military Caregiver Leave
The first type of leave, referred to in the regulations as “military caregiver leave,” has been effective since the NDAA went into effect on January 28, 2008. This type of leave permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave during a single 12-month FMLA period to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”
The new regulations define a number of terms that apply specifically to this type of leave, such as “covered servicemember,” “covered veteran,” “next of kin,” “son or daughter of a covered servicemember,” “parent of a covered servicemember” and “serious illness or injury.”
A. 2009 Change to include preexisting conditions – In October 2009, the definition of “serious injury or illness” was expanded to include not only a qualifying injury or illness that was incurred in the line of duty on active duty, but also a qualifying injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty. The 2013 regulations encompass these changes. §825.127(c).
B. 2009 Change to include veterans – The term “covered servicemember” was initially defined to include only current members of the Armed Forces, including the National Guard or Reserves. It did not initially include former members of the Armed Forces, National Guard, or Reserves. The October 2009 expansion changed this and provided 26 weeks of job-protected unpaid leave in a 12-month period to family members who are caring for certain covered veterans. Under the expanded law, family members are entitled to leave to care for veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness that was incurred in the line of duty on active duty (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty) and which manifested itself either before or after the member became a veteran. The regulations outline a special definition of “serious injury or illness” that applies to covered veterans. To be covered, the veteran also must have been discharged or released from the military under conditions other than dishonorable. The 2013 regulations encompass all of these changes. §825.127.
A family member is entitled to leave if the veteran was discharged from the military within the five-year period before the family member first takes FMLA leave to care for the veteran. The 2013 regulations provide detail regarding how to calculate the five-year period. They provide special rules for veterans who were discharged from the military between October 28, 2009, which was the date of the enactment of the FY 2010 NDAA, and March 8, 2013, the effective date of the most recent regulations.
C. Family relation definitions – In order to be eligible for military caregiver leave, an employee must be the spouse, son or daughter, parent, or next of kin of the covered servicemember. §825.127(d). The regulations define the terms “son or daughter,” “parent” and “next of kin.” Most notably, “son or daughter” is defined to include adult children, in contrast to the preexisting FMLA definition of “son or daughter.” §825.127(d)(1). “Parent” is defined to include biological, adoptive, step or foster parents, or any individual standing in loco parentis, but not parents-in-law. §825.127(d)(2). The regulations expand the NDAA definition of “next of kin” (defined in the NDAA as “nearest blood relative”) to clarify how to determine which blood relative is the “nearest” to the covered servicemember. §825.127(d)(3).
D. The 12-month period is different than for other types of FMLA leave – When military caregiver leave is taken, an eligible employee may take up to 26 workweeks of leave during “a single 12-month period” to care for the servicemember.
1. The regulations explain that the 12-month period begins on the first day an eligible employee takes military caregiver leave and ends 12 months later, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. §825.127(e)(1). Therefore, the applicable 12-month period used for calculating military caregiver leave is almost certain to differ from the 12- month period used for calculating other FMLA-qualifying leave.
2. Military caregiver leave is combined with other FMLA-qualifying leave and may not exceed 26 weeks during a single 12-month period. §§825.127(e)(2), 825.127(e)(3). Of the 26 weeks of leave, only 12 weeks may be for reasons other than military caregiver leave. Id. Leave that qualifies as both military caregiver leave and leave to care for a family member with a serious health condition must be categorized as military caregiver leave in the first instance, and a single instance of leave cannot be counted against both types of leave entitlement. §825.127(e)(4).
It is important to note that, because the FMLA leave year for military caregiver leave differs from the leave year used for other FMLA leave, the possibility exists that an employee may be able to “piggyback” military caregiver leave with other types of FMLA leave, including leave to care for a family member with a serious health condition, by taking leave in different leave years.
The regulations contain extensive guidance regarding how to calculate military caregiver leave with other types of FMLA leave. The introduction to the 2009 regulations contained the following example:
A number of commenters asked that the Department provide examples of how
employers should “reconcile” the use of leave to care for a covered
servicemember with other FMLA leave if two different leave years are used.
The following example explains how an employer would calculate an
employee's entitlement to military caregiver leave when it utilizes a calendar
year method for other FMLA qualifying reasons:
The employer uses the calendar year method (January 2009-December 2009)
for determining an employee's leave balance for FMLA leave taken for all
qualifying reasons other than military caregiver leave. An employee first takes
military caregiver leave in June 2009. Between June 2009 and June 2010 (the
“single 12-month period” for military caregiver leave), the employee can take
a combined total of 26 workweeks of leave, including up to 12 weeks for any
other qualifying FMLA reason if he has not yet taken any FMLA leave in
If, however, the employee had already taken five weeks of FMLA leave for his
own serious health condition when he began taking military caregiver leave in
June 2009, he would then be entitled to no more than seven weeks of FMLA
leave for reasons other than to care for a covered servicemember during the
remainder of the 2009 calendar year (i.e., the 12 weeks yearly entitlement
minus the five weeks already taken). Although his entitlement to FMLA leave
for reasons other than military caregiver leave is limited by his prior use of
FMLA leave during the calendar year, the employee is still entitled to take up
to 26 weeks of FMLA leave to care for a covered servicemember from June-
Beginning in January 2010, the employee is entitled to an additional 12 weeks
of FMLA leave for reasons other than to care for a covered servicemember. If
the employee takes four weeks of FMLA leave for his own serious health
condition in January 2010, this would reduce both the number of available
weeks of FMLA leave remaining in calendar year 2010 (i.e., the 12 weeks
yearly entitlement minus the four weeks already taken) and the number of
weeks of FMLA leave available for either military caregiver leave or other
FMLA qualifying reasons during the “single 12-month period” of June 2009-
Once the employee exhausts his or her 26-workweek entitlement, he or she
may not take any additional FMLA leave for any reason until the “single 12-
month period” ends. Thus, for example, if the employee took 20 workweeks of
military caregiver leave from June-December 2009, four workweeks of leave
in January 2010 for his or her own serious health condition, and another two
workweeks of military caregiver leave in March 2010, the employee will have
exhausted his or her 26-workweek entitlement for the “single 12-month
period” of June 2009-June 2010. While the employee would still have eight
weeks of FMLA leave available in calendar year 2010, the employee could not
take such leave until after June 2010, when the “single 12-month period”
Federal Register, Vol. 73, No. 222, at 67970-71, available at http://www.dol.gov/whd/fmla/finalrule.htm
3. Furthermore, the new regulations clarify that the entitlement for military caregiver leave applies on a per-covered servicemember, per-injury basis. Therefore, a subsequent 12-month period may be triggered for a different covered servicemember or for a new, subsequent injury or illness for the same servicemember. However, an employee is entitled to no more than 26 weeks of caregiver leave in a single 12-month period, even if requested for different servicemembers. §825.127(e)(2). Thus, an eligible employee may take up to 26 weeks of military caregiver leave to care for one servicemember and then, the following year, take up to 26 weeks of leave to care for another servicemember or the same servicemember with a subsequent serious injury or illness.
E. Spouse employed by the same employer – Spouses who are employed by the same employer are together entitled to a combined total of 26 weeks of military caregiver leave, or for a combination of that leave and leave for the following: (1) birth, adoption or foster care and/or to care for such a child; or (2) to care for a parent with a serious health condition. §825.127(f).
F. Certification Issues
1. Employers may require employees seeking military caregiver leave to obtain a certification completed by the covered servicemember’s health care provider. §825.310(a). The 2013 regulations expanded the list of health care providers who can provide a medical certification to support military caregiver leave. The employer may require that the certification detail: (1) certain information about the health care provider; (2) whether the injury/illness was incurred in the line of duty, or whether it was preexisting but was aggravated by service in the line of duty; (3) the date on which the serious injury or illness began or was aggravated, and its probable duration; (4) a description of medical facts regarding the servicemember’s health condition that demonstrate FMLA coverage (there are different requirements for current servicemembers and veterans); and (5) information sufficient to establish that the servicemember is in need of care. If the employee requests leave on an intermittent or reduced schedule basis, the certification may also include a statement as to whether there is a medical necessity for the servicemember to have periodic care and the frequency and duration of that care. §825.310(b).
The Department of Labor has issued two sample certification forms for military caregiver leave, one for current servicemembers and one for veterans, available at http://www.dol.gov/whd/fmla/. These forms do reflect the expanded provisions for servicemembers and veterans.
2. The employer may also require the employee requesting leave to certify additional information, including: (1) the name of the employee and servicemember and their relationship; (2) information about the servicemember’s military assignment; (3) whether the servicemember is an outpatient or is on the temporary disability retired list; (4) whether the servicemember is a veteran, date of separation, and whether the separation was dishonorable (and the employer can request documentation of these facts); and (5) a description of the care to be provided to the servicemember and an estimate of the leave needed to provide the care. §825.310(c).
3. In lieu of the employer’s own certification form (or the Department’s sample certification form), an employer must accept as sufficient certification “invitational travel orders” (“ITOs”) or “invitational travel authorizations” (“ITAs”) issued to any family member to join an injured or ill servicemember at his or her bedside. §825.310(e).
4. Employers may contact the health care provider to authenticate or clarify the certification. However, the new regulations do not provide for recertification of the need for military caregiver leave. Except in limited circumstances where certification is obtained from a health care provider not affiliated with the military, second or third medical opinions are generally not permitted. §825.310(d).
G. Employee notice – Employees seeking military caregiver leave must give the same 30 days’ notice required for other FMLA leave, unless such notice is not practicable. §825.302(a).
II. Leave Based on a “Qualifying Exigency”
The second type of leave, referred to in the regulations as “qualifying exigency leave,” went into effect January 16, 2009. This type of leave permits an employee to take 12 weeks of FMLA leave for “any qualifying exigency . . . arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”
Qualifying exigency leave counts against an employee’s general 12-week in 12-months leave entitlement, and the general 12-month leave year applies, rather than the separate entitlement and leave year used for military caregiver leave.
The regulations define a number of terms that apply specifically to qualifying exigency leave, including “covered active duty or call to covered active duty,” “deployment to a foreign country” and “son or daughter on covered active duty.”
A. The new regulations define the term “qualified exigency” to include the following:
1. Short-notice deployment, meaning a call or order to active duty seven (7) or less calendar days prior to deployment. FMLA leave is permitted during a seven-day calendar period based on this exigency, beginning on the date of notification of deployment. §825.126(b)(1).
2. Military events and related activities, including official ceremonies, programs, family support or assistance programs, informational briefings, or other events sponsored by the military that are related to the active duty of a covered military member. §825.126(b)(2). Arrival ceremonies or other events following termination of a covered military member’s active duty status are included if they occur within ninety (90) days of the termination. §825.126(b)(7)(i).
3. Childcare and school activities, including providing childcare on an urgent, immediate-need basis, arranging alternative childcare or schooling when the active duty status of a covered military member necessitates a change in existing arrangements, or attending meetings with staff at a school or daycare facility. §825.126(b)(3).
4. Attending to financial and legal arrangements necessitated by the covered military member’s active duty, or serving as a representative before administrative agencies for purposes of obtaining military service benefits. §825.126(b)(4).
5. Counseling, provided that the need for counseling arises from the active duty. §825.126(b)(5). Note that this is non-medical counseling, provided by someone other than a heath care provider.
6. Spending time with a covered military member on short-term, temporary, rest and recuperation leave from active duty, for up to fifteen (15) days for each instance of rest and recuperation leave. §825.126(b)(6). Note that the 2013 regulations increased this leave from five days to 15.
7. Post-deployment activities, including arrival ceremonies, reintegration events, and official military programs that occur within ninety (90) days following the termination of active duty. §825.126(b)(7)(i). This includes leave for the death of a covered military member on active duty status. Leave is permitted to address all attendant issues. §825.126(b)(7)(ii).
8. The 2013 regulations added leave for parental care, including to arrange for alternative care for a parent of a servicemember when that parent is incapable of self-care as defined by the regulations, to provide parental care on an urgent, immediate basis, to admit or transfer a parent to a care facility, and to attend meetings with facility staff, when the need for leave arises from the servicemember’s service. §825.126(b)(8).
9. Additional activities, provided that the employer and employee agree that leave for the activities will qualify as an exigency, and provided that the employer and employee agree to both the timing and duration of the leave. §825.126(b)(9).
B. Eligible employees – Employees eligible for qualified exigency leave include those whose spouse, parent, son, or daughter is on covered active duty or a call to covered active duty. §825.126(a). In the initial regulations, covered military members, for purposes of this regulation, included only members of the military’s Reserve components, the National Guard, and certain retired members of the Regular Armed Forces and Reserve. §825.126(b)(2). Members of the Regular Armed Forces were initially not considered “covered military members.”
C. 2009 expansion of eligibility to include Regular Military Components
a. The October 2009 changes redefined “covered activity duty” to include:
“(A) in the case of a member of a regular component of the Armed Forces,
duty during the deployment of the member with the Armed Forces to a
foreign country; and
(B) in the case of a member of the reserve component of the Armed
Forces, duty during the deployment of the member with the Armed Forces
to a foreign country under a call or order to active duty under a provision
of law referred to in section 101(a)(13)(B) of title 10, United States
b. With this change, qualifying exigency leave was expanded to include eligible family members of active duty servicemembers in the Reserve and Regular components of the Armed Forces. Specifically, the Act now permits family members of all active duty servicemembers to take up to 12 weeks of unpaid jobprotected leave in a 12-month period for a qualifying exigency arising out of the covered active duty or call to covered active duty status of a spouse, son, daughter, or parent. These changes are reflected in the 2013 regulations. §825.126(a).
c. The October 2009 change also made clear that the servicemember must be deployed to a foreign country. Prior to the 2009 expansion, exigency leave was limited to family members of Reserve and National Guard servicemembers whose deployments “related to contingency operations (i.e., an action or operation against an opposing military force)” but did not make clear that the deployment must be to a foreign country. After the 2009 changes, there is no leave entitlement for either a regular or reserve member of the Armed Forces for domestic deployment. The call to duty for a reserve member must still involve a contingency operation. Additionally, for both regular and reserve members, the call must be a federal call to active duty, and state calls are only covered in certain situations. §825.126(a)(1)-(4).
D. Certification Issues
a. The first time that an employee requests leave because of a qualifying exigency, an employer may require the employee to provide a copy of the covered military member’s active duty orders or other documentation indicating that the member is on active duty or call to active duty status. §825.309(a). The employer may also require documentation of the dates of the active duty service. Id. An employer may verify active duty information by contacting an appropriate unit of the Department of Defense. §825.309(d).
b. An employer may require the employee to submit a certification setting forth: (1) a statement setting forth facts supporting the need for leave, including supporting documentation; (2) the approximate date when the exigency began or will begin; (3) the beginning and end dates of leave requested, if applicable; (4) an estimate of the frequency and duration of the qualifying exigency, if leave is sought on an intermittent or reduced schedule basis; (5) appropriate contact information if the exigency requires meeting with third parties; and (6) documentation regarding the granting of rest and recuperation leave, if appropriate. §825.309(b). The employee’s permission is not needed for the employer to verify meeting or appointments with third parties by contacting the third parties. §825.309(d). The new regulations do not provide for recertification of the need for qualifying exigency leave.
The Department of Labor has issued a sample certification form for qualifying exigency leave available at available at http://www.dol.gov/whd/fmla/. This form reflects the 2009 statutory changes and 2013 changes to the regulations.
E. Employee notice – For leave due to a qualifying exigency, the employee must provide notice of the need for leave as soon as practicable, regardless of how far in advance the leave is foreseeable. §825.302(a).
COORDINATING WITH OTHER LEAVE POLICIES
A. Substitution of paid leave – Employees may use or employers may require employees to use accrued sick, vacation, or other paid leave for unpaid leave time under the FMLA. The employee is then subject to the requirements of those plans.
a. For example, if an employee elects paid leave under an employer’s temporary disability plan and that plan has more stringent requirements, the employee must meet those more stringent requirements to receive paid leave. The employee may choose not to meet the more stringent requirements and take unpaid FMLA leave. Similarly, if an employer requires less information under its own medical leave plan and the employer or employee elects paid leave, the employer may impose only its lesser sick-leave certification requirements.
b. An employer can only require substitution of paid time for FMLA time that is unpaid. Where an employee is otherwise receiving pay, such as short term disability pay or workers’ compensation, the employer cannot also require the employee to concurrently use other paid leave, such as sick leave. Therefore, while on FMLA leave due to an on-the-job injury, an employee usually may receive workers' compensation or pay for unused vacation or sick time, but not both. §825.207.
B. State pregnancy laws – Further analysis under state law is necessary if the employee is on leave due to a pregnancy-related condition.
a. Ohio law arguably provides greater protection to employees in pregnancy and childbirth than does federal law. State regulations require an employer to allow “reasonable leave on account of childbearing.” Ohio Admin. Code §4112-5- 05(G). This requirement may entitle employees to longer periods of leave than the FMLA’s twelve-week period.
b. The issue of reasonable leave time under Ohio law is especially problematic in situations where a pregnant employee has already taken part or all of her FMLA leave due to pregnancy-related complications before giving birth. In that case, further leave may be required. McConaughy v. Boswell Oil Co., 126 Ohio App. 3d 820 (Ohio Ct. App. 1998).
C. Light duty and alternative positions and leave issues
a. Offers for light duty work raise FMLA and workers' compensation issues –
When an FMLA-qualifying on-the-job injury occurs, FMLA leave and workers' compensation may run concurrently. §825.207(e). To avoid continuing temporary total disability payments, an employer may offer a \"light duty\" position while the employee is convalescing. Such an offer would not violate the FMLA; however, the employer may not mandate that the employee actually return to a light duty position. Although the employee who declines a light duty position may be denied continuing temporary total payments, and he/she will retain the right to continue on unpaid FMLA job-protected leave for the duration of his/her FMLA entitlement. §825.207(e).
b. Light duty as a reasonable accommodation under the ADA – Light duty is generally a request to remove the \"heavy duty\" essential requirements of a job or to reassign the employee to a different, less physically demanding job. If the \"heavy duty\" requirements of the job are actually marginal functions – rather than essential – the employer is required to accommodate the employee's request for light duty by reassigning those marginal functions.
i. Furthermore, an employer may be required to accommodate the individual by reassigning him or her to a vacant light duty position. Of course, an employer has no duty to create a light duty job into which an employee can be reassigned.
ii. It is acceptable under the ADA for an employer to offer light duty only on a temporary basis for a certain amount of time, or only to create light duty assignments for employees who suffer on-the-job injuries, so long as these policies are applied consistently.
iii. Employers who have a policy providing for light-duty work for a maximum period of time (two months, for example), should apply this policy to all employees, including those with disabilities, equally. The key factor in whether light duty would be considered a reasonable accommodation where such a policy exists is the temporary versus permanent nature of the condition. For example, an employer does not violate the ADA or apply its light duty policy in a discriminatory manner when it reemploys in its light duty program temporarily disabled employees who would one day be able to perform their original jobs, and excludes from participation those employees whose permanent disability prevents them from being qualified for their original or comparable positions. See Ellis v. Buzzi Unicem USA, 2008 U.S. App. LEXIS 13498 (6th Cir. June 24, 2008).
iv. According to guidance issued by the EEOC on September 3, 1996, employers who do not have a formal policy regarding light-duty work, but who do create temporary light duty jobs for employees with occupational injuries, do not have to create such positions as a reasonable accommodation for workers with disabilities who are not injured on the job.
c. Job reassignment to accommodate intermittent leave – FMLA regulations specifically permit an employer to reassign an employee who has been certified to take intermittent or reduced schedule leave to a different position that better accommodates the leave. §825.204(a).
d. Job restructuring as an accommodation under the ADA – As an accommodation, the employer must redistribute marginal functions, but the employer is not required to reallocate essential functions. However, an employer may be required to alter when and/or how an essential function is performed. For example, an essential function customarily performed in the early morning hours may be rescheduled until later in the day as a reasonable accommodation to a disability that precludes performance of the function at the customary hour.
e. Part-time or modified work schedules under the ADA – Many people with disabilities can perform jobs with a modified work schedule. This may include flexibility in work hours or permitting part-time work, so long as this will not cause an undue hardship to the employer. In certain circumstances, employers may be required to allow reasonable shift changes, or to reduce or eliminate overtime, in order to reasonably accommodate a disabled employee, even where the employee’s disability only presents difficulties in getting to work. However, employers are not required to reduce their performance and production requirements.
f. Reassignment to a vacant position under the ADA – Reassigning an employee with a disability who can no longer perform the essential functions of a current job to a vacant position may be required.
i. Consider this option only when accommodation within the individual's current position is not possible or would impose an undue hardship.
ii. There are a few well-established rules regarding reassignment as an accommodation.
1. Employers never have to \"bump\" another employee out of a position to create a vacancy for the employee with the disability.
2. Reassignment is not available to applicants.
3. Reassignment should be to an equivalent position in status and pay; however, an employer may reassign an individual to a lower graded position if there are no accommodations that will allow the person to remain in the present position and there are no vacant positions or soon to be vacant positions for which the employee is qualified. Promoting a person with a disability is not considered a reasonable accommodation.
4. In some jurisdictions, the statutory duty to accommodate an employee by reassigning him/her into a vacant position is considered mandatory, meaning the employer must actually reassign the employee into a vacant position and not merely consider her alongside other applicants. This is the position taken by the EEOC.
5. However, a disabled employee may be properly denied a reassignment into a suitable vacant position where the reassignment would violate a collective bargaining agreement, as such an accommodation would not be reasonable. Rector v. Ohio Bureau of Workers' Comp., 2010 Ohio App. LEXIS 1734, *10 (Ohio Ct. App., Franklin County May 13, 2010).
D. Other ADA issues – The FMLA provides that it does not supersede or modify any local, state, or federal law that provides greater leave rights than those permitted under the FMLA or that prohibits discrimination based on disability, sex and other protected classifications. But what if an employee has a serious health condition which also is a disability under the ADA?
Under the recently enacted Americans With Disabilities Act Amendments Act (ADAAA) and the corresponding regulations, many more individuals will qualify as disabled. Thus, ADA issues will very often arise when dealing with the FMLA. If an employee is a \"qualified individual with a disability\" under the ADA, the ADA requires that the employer must reasonably accommodate that employee. If the employee's condition also is a serious health condition under the FMLA, the employer must also satisfy all FMLA obligations. For example, while the FMLA prohibits requiring an employee to forgo FMLA leave and take a job that accommodates his or her health condition (i.e., a light duty job), the ADA may require that the same job be offered to the employee to comply with the company's reasonable accommodation obligations. Employers must analyze their obligations under each law distinctly and carefully. See §825.702.
a. Extended leave under the ADA – The ADA does not limit employees to 12 weeks of leave per year. An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer’s business.
i. However, an indefinite leave is not a reasonable accommodation under the ADA, especially where attendance would be considered an essential part of the job.
ii. In considering the appropriateness of extended medical leave under the ADA, courts have held that an extended leave, with no clear prospects for the employee’s return, may not be reasonable. For an extended leave to be a reasonable accommodation, the leave time generally must enable the employee to perform his or her essential job functions in the near future. Ohio federal courts have generally held that a leave exceeding one year, with no clear prospects for return, is usually not reasonable. However, this is not a per se one-year rule, and the situation depends on the employee’s prognosis. Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6th Cir. 1998).
b. Job restoration under the ADA – The ADA requires the reinstatement of the employee into the same job unless an undue burden exists. Under the FMLA, the employee is entitled to reinstatement into only an equivalent position. These are different standards.
i. Under the ADA, if an employee requests more time for leave after the employer has communicated that it cannot hold the employee’s job open any longer, the employer must see if it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship once the employee returns from extended leave. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued accommodation is not required if a vacant position at a lower level is also unavailable.
ii. Under the ADA, if it turns out that the employee is unable to perform the essential functions of his/her original position with a reasonable accommodation, the employer must then consider reassignment. Under the FMLA, if an employee is unable to perform an essential function of the same or equivalent position, the FMLA does not require the employer to reinstate the employee into another job.
iii. If an employee’s position was eliminated during her FMLA leave, the employee would not have a right to reinstatement upon her return because she would not have been entitled to the eliminated position had she not taken the leave, regardless of her disability. However, failure to offer the employee an equivalent position may have unlawfully interfered with her right to take FMLA leave. The employer must demonstrate that its reasons for terminating an employee were wholly unrelated to the employee’s FMLA leave.
iv. FMLA or ADA leave may also impact employers’ policies imposing time restrictions to complete on-the-job training or apprenticeship programs. If an employee is not reinstated upon return from leave due to lack of required hours or failure to complete a training program, the policy as applied to that employee may violate an individual’s FMLA rights. Granting an employee an extension of time to complete required training may also be a reasonable accommodation under the ADA.
c. Transfer to an equivalent position – The FMLA permits an employer to temporarily transfer an employee who is taking an intermittent or reduced schedule leave to another position. Under the ADA, this transfer to an equivalent, vacant position is allowed only if the employee cannot perform the essential functions of his or her present job and the present job cannot be modified to enable the employee able to work.
d. Fitness for duty – If an employer requires certifications of an employee's fitness for duty to return to work, as permitted by FMLA under a uniform policy, it must comply with the ADA requirement that a fitness-for-duty physical be job-related.
e. Continuation of health insurance benefits on ADA extended leave – While FMLA requires the maintenance of group health plan coverage during the leave, the ADA does not require the same unless other employees receive health insurance during leave under the same circumstances. Under the ADA, an employer must continue health insurance coverage for an employee taking leave or working part-time only if the employer also provides coverage for other employees taking leave or working part-time status.
E. Workers' Compensation – Interactions between the FMLA and workers' compensation occur where the employee takes an FMLA leave after experiencing a workplace injury. The FMLA regulations explain several specific areas of interaction, the primary of which are presented below. (Also see light duty section, above.)
a. Concurrent use of FMLA leave – Pursuant to the employer’s policy, FMLA leave and workers’ compensation can run concurrently. However, while on FMLA leave due to an on-the-job injury, an employee generally may receive workers' compensation or pay for unused vacation or sick time, but not both. §825.207(e).
b. Medical certification – Under the FMLA, an employer has a right to require an employee to submit a written medical certification signed by the employee's health care provider to verify the need for leave. The FMLA regulations prevent an employer from requesting additional information from the employee's health care provider unless the employee consents (§825.307(a)), or where workers' compensation law permits the employer representative to contact the provider (§825.306(c)).
F. Interaction with COBRA – The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides employees certain rights to continue to pay premiums toward group health insurance upon the occurrence of qualifying events, such as termination of employment and reduction in hours.
a. Taking leave under the FMLA does not constitute a qualifying event under COBRA. Treasury regulations, at 26 C.F.R Part 54.4980B-10. However, a failure to return to work following the conclusion of an FMLA leave may be deemed a qualifying event. While an employee is on leave, the employer must continue to provide health benefits under the FMLA regulations. See 29 C.F.R. §§825.210.
b. Loss of benefits due to failure to pay premiums during FMLA leave is not a qualifying event. 29 C.F.R. Part 54-4980B-10.
G. Section 125 Cafeteria Plans –Treasury regulations, at 26 C.F.R. Part 1.125-3, set forth clarification as to the interaction between FMLA and Section 125 cafeteria plans in a question and answer format.
TROUBLESHOOTING COMPLEX LEAVE OF ABSENCE ISSUES
The following provides a quick checklist for addressing some common yet complex issues regarding leaves of absence:
1. Eligibility. Confirm that employee is eligible for FMLA leave and that the employer is a covered entity.
a. Eligible Employee: One year of service with the employer (need not be continuous) and 1250 hours of service in the 12-month period immediately preceding the actual or projected commencement of leave; employed at a worksite where 50 or more employees are employed within 75 miles.
i. The 1250 hour period does not include time spent in the previous year on FMLA leave.
ii. Must advise of ineligibility within five business days.
b. Covered Entity: Entity engaged in commerce that employs 50 or more employees for each workday in at least 20 weeks in the current or previous calendar year.
There is also joint employer coverage and successor coverage.
c. Even where the employee is not eligible for FMLA or has exhausted his/her leave, consider whether the employee is disabled and whether continued leave would be reasonable accommodation under the ADA and state law.
2. Serious Health Condition. Confirm that employee is seeking leave for a covered reason.
a. “Serious Health Condition” of himself/herself
i. Is employee “incapacitated”?
ii. Has 3 calendar day/2 treatment rule been met?
b. “Serious Health Condition” of family member
i. Limited to the employee’s spouse, son, daughter or parent.
ii. Is family member “incapacitated”?
iii. If caring for family member, is the person “needed for care”?
iv. If caring for child, is the child under 18? If not, is the child able to care for himself/herself?
v. Has 3 calendar day/2 treatment rule been met?
3. Intermittent/Reduced Schedule Leave Issues. Confirm that employee’s situation permits intermittent/reduced schedule leave under the regulations.
a. If intermittent/reduced schedule leave is requested, the employer usually may transfer employee to an alternative position with equal pay and benefits (though ADA may prohibit).
b. Employer may establish policy that does not allow for intermittent leave to care for a newborn, newly adopted child or newly placed foster child.
c. Intermittent/reduced schedule leave must be “medically necessary.” Make sure certification properly addresses need for intermittent or reduced schedule leave.
d. Increments of leave: Employer may count intermittent leave in the shortest increment utilized by the employer for other types of leave, but not less than 1 hour increments.
e. Make sure all intermittent leave is accounted for.
4. Medical Information. Confirm that you have received sufficient medical information to justify the leave (including the reason for leave, the need for intermittent or reduced schedule leave, and the length/duration of leave requested).
a. Set ground rules for the employee to provide complete medical certification.
b. If the employee fails to provide the information after the initial request, set a date certain upon which the information must be returned or consequences will be imposed, including delaying/denying FMLA leave and/or discipline.
c. What if the certification form is not complete?
i. Require the employee to obtain complete information from the health care provider. Send a letter to the employee detailing exactly what information is missing and unclear, and explain that the employee must obtain the complete information from the health care provider by the deadline.
ii. Consider obtaining a limited HIPAA release from the employee to enable direct communication with the health care provider.
d. What if the health care provider refuses to provide information regarding an employee’s family member?
i. Instruct the employee that he/she will be required to obtain the needed information.
ii. Consider obtaining a limited HIPAA release from the individual with the serious health condition to enable the health care provider to release the records.
5. Questioning the Need for Leave. If the employer has reason to doubt the genuineness of the need for the leave or the length/duration of the leave, consider the following:
a. Require periodic recertification (see above explanation of recertification timelines under the new regulations). Some courts have held that, where otherwise permissible under the regulations, a recertification must be obtained before an employee is terminated for FMLA abuse.
b. Obtain another opinion (Second and third opinions).
i. Second opinion is at employer’s expense.
ii. Employer may choose doctor, but doctor cannot be one regularly used by the employer.
iii. If second opinion differs from employee’s first certification, employer may require a third opinion, at employer’s expense, which will be final and binding. Employee and employer must approve the doctor. Some courts have held that rejecting an employee’s requested leave based on a second opinion violates the FMLA, unless a third opinion “tie-breaker” is obtained.
iv. Employer must provide employee with copies of second and third opinions upon the employee’s request.
v. Employer must reimburse employee for out-of-pocket expenses related to second and third opinions.
vi. May not require employee to travel outside “normal commuting distance.”
c. Make sure you obtain information from the health care provider specifically certifying whether the employee can perform the essential functions of his/her job. Provide health care provider with statement of essential job functions.
DRAFTING AN FMLA POLICY
Employers who have written guidelines concerning employee benefits or leave, such as ones that would appear in employee handbooks, must include an explanation of FMLA entitlements and obligations. Otherwise, an employer that does not have a handbook and similar written policies must provide general notice to an employee of his or her FMLA rights upon hire. Since the law provides employers with certain choices as to how to administer covered leaves, employers should carefully draft FMLA policies that outline these issues.
A. Necessary policy components – In addition to including the information required by the
DOL, employers should consider the following issues when drafting an FMLA policy:
- How will the employer designate the 12-month period in which leave is to be taken? Employers have four options for calculating the leave year: the calendar year; any fixed 12-month year (such as the fiscal year or the year starting on the employee’s anniversary); the 12-month period measured forward from the date the employee’s FMLA leave begins; or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave. Most employers use a “rolling backward” leave year because it prevents employees from piggy-backing leave entitlements from concurrent leave years.
- Will the employer permit employees taking leave to care for a newborn (or child placed in foster care/for adoption) to take intermittent leave? The regulations provide that an employer is not required to permit intermittent leave for these reasons; however, the employer must set forth its position in the written policy.
- Set forth the consequences for failure to comply with the policy requirements. For example, if the employee fails to provide notice as required, they may forfeit leave and may be subject to disciplinary action up to and including termination of employment.
- Notify employees that the Company will require periodic medical recertifications.
- Notify employees that the Company may require second and third opinions.
- Notify employees that their ability to return to work following a leave of absence may be subject to completion of a fitness for duty medical examination.
- Inform the employee that they may be asked to sign a release for medical information in conjunction with a request for a leave of absence.
- Explain how FMLA affects other leave policies. For example, if employees are entitled to paid time off through sick leave, personal leave, PTO, or something similar, explain that FMLA and other types of leave will run concurrently, and that the employee will be required to exhaust paid leave before they may take unpaid leave. That is, an employee cannot elect unpaid leave first, in order to save their vacation time for later. Explain that FMLA will run concurrently with workers’ compensation leave and short term disability leave.
B. FMLA documents to prepare – In addition to drafting the policy itself, the employer should put together a package of FMLA forms for use by supervisors and human resources. The package should include:
- Request for Leave of Absence
- Designation of Leave (Employer can use a separate form or a tear-off on the request
form to designate whether the request is granted and whether the leave will qualify as
- Copy of full policy, or at minimum, summary of FMLA rights
- Medical Certification Form
- Authorization and Release for Medical Information
- Checklist or other form for internal use to track dates of communication with employee regarding leave
- Sample letter to employee requesting information
- Sample letter to employee explaining that FMLA leave has been exhausted and (to be used where appropriate) inviting an interactive discussion under the ADA.
C. Job descriptions – In addition to the forms suggested above, the employer should also have available updated and accurate job descriptions for each of its positions. When seeking clarification of the need for leave or fitness for duty, the employer should provide the physician with a copy of the job description and request an opinion as to whether the employee is be able to perform the essential functions of the job.