The Department of Labor (DOL) recently published its final rule to implement the first-ever amendments to the Family & Medical Leave Act (FMLA) in its 15 year history. The new DOL regulations (the new regs) both revise former regulations and provide specific guidance pertaining to "military care giver" and "qualifying exigency" leave which were incorporated into the FMLA by way of the National Defense Authorization Act in January, 2008. As the new regs became effective January 16, 2009, covered employers -- those with 50 or more employees in the current or preceding year -- should revisit their current policies and procedures to ensure compliance with the FMLA on a going forward basis.

Military-Related Family Leave

The new regs provide much-needed guidance as to the two types of military-related family leave that the FMLA now provides. "Military Caregiver Leave" or "Covered Servicemember Leave" is available to eligible employees who are family members of covered servicemembers. These employees will be able to take up to 26 work weeks of leave in a "single 12-month period" to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty. This 26 work week entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. Moreover, this provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons under the law.

The second new military-related leave entitlement -- "Qualifying Exigency Leave" -- is designed to help families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This provision allows for up to 12 work weeks of FMLA job-protected leave to eligible employees arising out of the fact that a covered military family member is on active duty or called to active duty status in support of a contingency operation. The DOL's final rules define "qualifying exigency" by referring to a number of broad categories for which employees can use FMLA leave:

(1) short-notice deployment;
(2) military events and related activities;
(3) childcare and school activities;
(4) financial and legal arrangements;
(5) counseling;
(6) rest and recuperation;
(7) post-deployment activities; and
(8) additional activities not encompassed in the other categories, but agreed to by the employer and the employee.

Employers should modify their existing Family Leave policy statements and related documents specifically to provide for both types of military-related leave. In promulgating these new regs, DOL also has provided two new certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military-related family leave.

Changes to Notice Obligations Affecting Both Employees and Employers

The new regs modify former provisions that had been interpreted to allow some employees to provide notice of the need for FMLA leave up to two full business days after an absence (even if they could have provided notice more timely). The new regs provide that an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, absent special circumstances.

Employers face new notice obligations as well. The general "Notice of Rights" which must be posted and included in an employee handbook (or distributed separately, if there is no handbook) has been revised. This will require most employers to post new posters and immediately revise their handbook statements. When an employee requests FMLA leave or the employer acquires knowledge that leave may be for an FMLA-related purpose, the employer now has five (5) business days (instead of three) to provide the employee with a formal "Notice of Eligibility" for protected leave, as well as a "Statement of his/her Rights and Responsibilities" under the FMLA. In addition, within five (5) business days after receiving sufficient information to determine that the leave qualifies under the FMLA, employers must provide employees with a "Designation Notice" formally designating the leave as FMLA-qualifying (or noting that the leave does not qualify under the FMLA). Employers should be mindful of these notice obligations and utilize the appropriate forms to satisfy these responsibilities.

Medical Certification

The new regs now allow employers to contact directly an employee's healthcare provider to authenticate or to obtain clarification of information required by a certification form. However, certain restrictions exist. Only a healthcare provider, human resource professional, leave administrator, or other management official may contact an employee's healthcare provider; in no case may it be the employee's direct supervisor. Moreover, such person may not ask healthcare providers for "additional information" beyond that required by the certification form. To assist in this dialogue, the DOL has updated its "Optional Form WH-380" to create separate forms for the employee and covered family members and by allowing -- but not requiring -- healthcare providers to provide a diagnosis of the patient's health condition as part of the certification. In seeking any additional information, an employer is first required to provide written notice to an employee when the certification form contains missing or insufficient information to determine if the leave is related to a "serious health condition," specifically identifying the missing and/or insufficient information. The employer must allow the employee seven (7) calendar days to cure the deficiency. Only if the problem remains unresolved after this 7-day period may the employer's representative contact the employee's healthcare provider.

Other Possible Revisions

Under the former regulations, employers generally were not able to request "recertification" of a condition until the "minimum duration or incapacity specified in the initial certification" had passed. Since this left considerable confusion in those situations where the initial certification described the duration of the condition as "lifetime" or "unknown," the issue of when recertification could be required in such instances was problematic, at best. Thankfully, the new regs allow an employer to request recertification of an ongoing condition every six (6) months in connection with absences. Policy statements and other documents now can be revised to reflect this change.

The new regs also change the treatment of "perfect attendance awards" to allow employers to deny a "perfect attendance" award or bonus to an employee who does not have perfect attendance because of taking FMLA leave (as long as it treats employees taking non-FMLA leave similarly). Accordingly, employers may revise their "perfect attendance" programs to reflect this change in the law. Some employers may now wish to implement "perfect attendance" bonuses or other recognition as now only true perfect attenders can be rewarded, per the intent of the incentive.

Updating and clarifying your current FMLA-related policies, forms, posters and related documents to reflect the new regs should be a priority for all HR professionals in this new year. These final regulations implement new military-related protected leave, and are designed to improve communication between and among employees, employers, and healthcare providers. Our Labor & Employment lawyers can provide you with updated policy statements and related documents, and otherwise assist you with your day-to-day FMLA compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.