A New Day For The FMLA

Saturday, March 1, 2008 - 01:00

In 1993, when U2, Duran Duran, and the Pet Shop Boys had the hits of the day, the Family and Medical Leave Act ("FMLA") made its debut in companies across the U.S.A. That was more than fourteen years ago. It was a very different world. Despite our transformation during that time, there were no changes to the FMLA (or the Pet Shop Boys for that matter). Sure, the law was utilized by millions of employees and triggered its share of litigation. It also became the source of a new generation of human resource horror stories. Although year after year we heard that amendments were in the works, nothing surfaced; there were no substantive amendments to the FMLA or its complicated regulations. That is, until now.

Part I - FMLA Amendments: Military Family Leave

On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008, which amended the FMLA to provide expanded coverage for military family members. This is the first expansion of the FMLA since its enactment in 1993. The amendment creates two new forms of leave for families of servicemembers: (1) "caregiver leave" to care for a servicemember who has suffered a serious injury or illness; and (2) "active duty leave" to care for a servicemember who has experienced a "qualifying exigency" arising out of the servicemember's active duty. Both forms of military family leave may be taken intermittently or on a reduced leave schedule, and the FMLA requirements for employee and employer eligibility, notice, certifications, and job protection still apply.

Caregiver leave became effective immediately and should now be included in all FMLA policies. Active duty leave is not yet effective because there is no statutory definition of "qualifying exigency". The legislative history and the DOL provide some guidance, but nothing official has passed through Congress. In the meantime, the DOL is encouraging employers to use their best efforts to implement active duty leave.

Caregiver Leave - 26 Work Weeks

An eligible employee who is the parent, spouse, son, daughter, or next of kin (nearest blood relative) of a servicemember who suffers a serious injury or illness in the line of duty and while on active status is now entitled to a total of 26 work weeks of leave during a single 12-month period to provide care for the servicemember. 29 U.S.C.2612(a)(3). Caregiver leave expands the FMLA's eligible family member definition to next of kin and provides for 26 work weeks of leave, which more than doubles the FMLA's existing entitlement. A serious injury or illness, as opposed to the FMLA's serious health condition, is one that may "render the servicemember unfit to perform the duties of the member's office, grade, rank, or rating." 29 U.S.C.2611(19).

Twenty-six work weeks or half the work year applies only to caregiver leave. Employers may choose from the four existing FMLA methods of calculating the 12-month period, but the DOL has not yet determined what the "single 12 month period" means. For instance, does it connote a one-time entitlement or do the 26 work weeks of caregiver leave renew each 12-month period? Should the 12-month period be calculated from the date of the servicemember's injury, the date of the determination that the servicemember has a serious injury, or the date on which an eligible employee is needed to care for a seriously injured servicemember? Additionally, can an employee take 26 separate sets of work weeks to care for different servicemembers? If the servicemember's serious injury or illness also qualifies as serious health condition, must a particular type of leave be designated, and if so, who makes the designation? These questions remain unanswered even in the DOL's proposed rules and will likely cause employers significant difficulties in implementing the new policies.

Active Duty Leave - 12 Work Weeks

An eligible employee who is the parent, spouse, son, or daughter of a servicemember who experiences a "qualifying exigency" arising out of the servicemember's active duty is entitled to take up to 12 work weeks of leave during any 12-month period. 29 U.S.C.2612(a)(1)(E). Although the statute does not define "qualifying exigency," legislative history suggests the following examples: making arrangements for child care; making financial and legal arrangements to address the servicemember's absence; attending counseling related to the active duty of the servicemember; attending official ceremonies or programs where the participation of the family member is requested by the military; attending to farewell or arrival arrangements for a servicemember; and attending to affairs caused by the missing status or death of a servicemember. The DOL also proposed regulations which suggest that qualifying exigencies should be limited to non-medical exigencies and there must be some nexus between the eligible employee's need for leave and the servicemember's active duty status.

Employers may require that active duty leave be "supported by a certification issued at such time and in such manner as the Secretary [of Labor] may by regulation prescribe." Until the DOL prescribes the elements of such a certification, employers are urged to proceed with caution because the kinds of possible qualifying exigencies are deeply personal in nature - ranging from financial and legal matters to mental health counseling. Although employees must be required to provide some evidence that the covered servicemember is on active duty status and that his or her absence is due to a qualifying exigency, employee proof and employer verification of these personal matters will necessarily implicate privacy concerns.

Part II - DOL's Proposed FMLA Regulations

On Monday, February 11, 2008, the DOL published its long-anticipated proposed revised rules governing the FMLA. The proposals are not yet effective. The DOLis accepting comments on the proposed regulations through April 11, 2008 and final rules will likely be published later this year.

Anyone who has worked with the FMLAknows that the existing DOL regulations have caused almost as much confusion as they were intended to resolve. More than a decade of litigation on various provisions of the regulations, as well as one Supreme Court decision, and public outcry from both employers and employees, caused the DOL to re-examine the current set of regulations. The DOL's proposed rules are the result of a significant effort as demonstrated by its 127-page report in the Federal Register.

Highlights of the DOL Proposals

On a substantive level, the proposed regulations contain many improvements over the current regulatory scheme. From a bird's-eye-view, the current regulations are organized in a question-and-answer format, and, often, answers to a particular question or issue can only be determined by looking at more than one section of the regulations. The proposed revisions have eliminated much of the repetitive nature of the current regulations, keeping all of the information regarding a given topic (such as leave for the birth or adoption of a child) in one section, as opposed to spreading that information out over several different sections. The result is that the regulations are organized more intuitively, with the result of a much more user-friendly regulatory scheme.

Low Lights of the DOL Proposals

One significant disappointment with the revisions is the failure to address the long-standing challenges with the definition of "serious health condition." Under the current regulations, a serious health condition is defined as "an illness, injury, impairment, or physical or mental condition that involves . . . [i]npatient care . . . or [c]ontinuing treatment by a health care provider." 29 C.F.R.825.114. The "continuing treatment" aspect of the definition has been a source of complaint, since a doctor's visit and a prescription are enough to satisfy the definition. Although the current regulations note that the common cold, flu, and other minor illnesses would typically not be "serious health conditions" under the FMLA, employees are often able to make the necessary showing to have these minor illnesses count as FMLA-protected conditions. The proposed revisions reorganize the definition and renumber some sections, but the substance of - and problems with- the definition remain the same.

Other Topical DOL Proposals

On the positive side, the DOL does propose several improvements:

• The current regulations prohibit employers from talking directly with its employees' health care providers, and require employers to hire their own health care practitioners to ask questions about medical certifications. The proposed revisions allow employers to directly contact employees' health care providers for the purposes of authenticating and clarifying medical certifications.

• The current regulations prevent employers from denying a bonus or award to employees simply because they took an FMLA leave. The regulation had been interpreted by the DOL to mean that employer incentive programs, especially those based on attendance, could not be denied to employees who were absent for FMLA leave. In response to the decline in such bonus programs and an outcry from employers about the unfairness of granting perfect attendance bonuses to employees who were absent from work, the DOL proposed a change that would allow employers to disqualify employees from a bonus or award - predicated on the achievement of a goal - where the goal is not reached as a result of an FMLA leave of absence.

• In response to and, in essence, overruling the Fourth Circuit's decision in Taylor v. Progress Energy, 493 F.3d 454 (4th Cir. 2007), which invalidated the FMLA waiver in an employment severance agreement, the DOL's proposed revisions clarify that employers and employees may voluntarily agree to the settlement of past FMLA claims without the permission or approval of the DOL or a court. The prohibition on waivers of prospective FMLA claims remains a part of the regulatory scheme.

• The proposed revisions improve the definition of what constitutes "sufficient information" for employers to be on notice that employees need FMLA leave. Specifically, the proposed revision clarifies that calling in with the simple statement that the employee or the employee's family member is "sick" without providing more information will not be considered sufficient notice to trigger the FMLA.

In sum, the FMLA has changed and is slated for more change. Be sure that your FMLA policies reflect the current amendments and that your human resources personnel and management employees understand the new requirements.

Wendy Johnson Lario is a Partner and Stacy Smith Walsh and Micala Campbell Robinson are Associates in the Labor and Employment Group at Day Pitney LLP.

Please email the authors at wlario@daypitney.com, sswalsh@daypitney.com or mrobinson@daypitney.comwith questions about this article.