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January 14, 2009 |
Schiff Hardin Labor and Employment Alert In November 2008, the U.S. Department of Labor ("DOL") issued final regulations and amendments to the Family and Medical Leave Act (FMLA). These regulations come after a two-year process that attracted over 20,000 comments from employers, employee advocates and law firms, among others. The 2008 changes represent the most significant revisions since 1994. The revised regulations become effective January 16, 2009. One of the main objectives of the new regulations is to help clarify employer and employee responsibilities. Many of the changes benefit employers, by giving them more control over when employees may take leave and allowing them to administer FMLA leave in a manner consistent with other leave policies. Some of the more significant changes are discussed in more detail below. The requirement that an employee must have worked at least 12 months and 1250 hours to be eligible for FMLA leave is unchanged. However, a break in service will not always work against the employee for purposes of determining leave eligibility. Under the changes, an employee who has worked less than 12 months during a current term of employment may still be eligible if he or she worked a total of 12 months during the prior seven years (longer if the break was the result of certain qualifying military service). This regulation will directly impact those employers who have regular layoffs or shutdowns. The final rules adopt a change that allows employers — once they receive permission from the employee — to contact the employee's healthcare provider directly for clarification or authentication of a medical certification. The employer's inquiry to the healthcare provider is limited to information included on the certification form. The representative contacting the healthcare provider must be a human resource professional, leave administrator or a management official. The employee's direct supervisor is prohibited from contacting the healthcare provider. Employers must be careful to distinguish "direct supervisors" from "management officials" for purposes of this rule. Before contacting the healthcare provider, the employer must provide written notice of the deficiencies to the employee, and give the employee an opportunity to resolve the deficiencies. If the employee denies the employer permission to contact her or his healthcare provider, and does not otherwise clarify the information, the employer may deny the designation of FMLA leave. Under current law, employees have up to two days following an absence to inform the employer of the need for FMLA leave. The new rules change this requirement. Absent unusual circumstances, the employee must now follow the employer's "usual and customary" call-in procedures for reporting an absence. The new regulations impose several notice requirements on employers. In addition to the "general notice" posting under the current regulations, employers who do not have an employee handbook must distribute the notice to each employee upon hire. Employers must now issue an "Eligibility Notice" and a "Rights and Responsibilities Notice" within five days of either a request for leave or after learning that a leave request may qualify for FMLA coverage. Finally, employers must issue a written "Designation Notice" within five days after receiving sufficient information to determine whether the requested leave qualifies for FMLA coverage. In a departure from prior regulations, and in recognition of the increased role that technology plays in the workforce, the rules permit employers to post notices electronically, provided that all employees and applicants have access to electronic information. One significant area of change for employers relates to settlement of FMLA claims. The new regulations expressly provide that employees may settle prior FMLA claims without DOL or court approval. While the regulations are not binding on the courts, courts generally defer to an agency's interpretation of its own rules. Employers should modify releases to include waiver of prior FMLA claims. Prospective claims may not be waived. When scheduling intermittent or reduced leave, the final rule requires employees to make a "reasonable effort" (as opposed to an attempt under the former rules) to schedule FMLA leave so as not to disrupt unduly the employer's business operation. Generally, the employee must account for FMLA leave using an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that the increment is no longer than one hour. For example, if an employer uses 30-minute increments to account for sick leave and one-hour increments to account for vacation time, the employer must use the smaller of those increments (i.e., 30 minutes) for FMLA purposes. The employee's FMLA entitlement may not be reduced by more than the amount of leave time actually taken. Nor may employers deduct time during which the employee is working against an employee's FMLA entitlement. For example, if an employee becomes ill 20 minutes before the end of a shift, the employer may not deduct one hour of leave even if the employer uses one hour as its smallest leave increment. For the first time, the FMLA provides military families with special rights to care for military service men or women who are wounded or injured ("caregiver leave"). An eligible employee is entitled to 26 weeks of leave in a 12-month period, commencing on the first day of leave. During this period, the employee is entitled to no more than 12 weeks of leave for any of the other types of FMLA leave. In addition to spouses, parents and children, caregiver leave is available to "next of kin," which includes grandparents, aunts, uncles, first cousins and any relative designated as a caregiver by the service member. The employer may request certification of caregiver leave, and the DOL has developed an optional form for that purpose. The employer may develop its own form, but may not request information beyond what is specified in the regulations. Employers may not request recertification of caregiver leave. The new regulations also allow the employee up to 12 weeks of leave to handle certain non-medical exigencies that arise when the employee's spouse, child or parent is a member of the National Guard or Reserve and is called to active duty status. The "exigent" circumstances covered in the regulations include short-notice deployment (less than eight calendar days), childcare and school activities, post-deployment activities (homecoming and/or funeral arrangements) and counseling. The employee may also take up to five days of leave to spend time with a member who is on short-term, temporary "rest and recuperation" leave during his or her deployment. In addition to the above-referenced provisions, the regulations implement the following changes:
This article is not an exhaustive overview of the final regulations. For more information on the regulation, and how it may affect your workplace, contact a Schiff Hardin Labor and Employment attorney.
ABOUT SCHIFF HARDIN LLP Schiff Hardin represents management in labor matters and employment-related litigation, and provides counsel to employers with respect to all legal aspects of employer-employee relations. Our firm's labor law practice encompasses both the private sector and the public sector for large and small employers in a broad range of markets and industries. Schiff Hardin provides clients with management and supervisory training programs covering current employment-related legal issues, including complex FMLA and other leave questions. We offer both standardized training modules and training programs that are individually tailored to the client's needs and requests. For more information, please feel free to contact us. RECENT LABOR AND EMPLOYMENT PUBLICATIONS "California Wage and Hour Laws Apply to Non-Residents Performing Work in California," Labor and Employment Update (November 19, 2008)
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