Effective Jan. 16th, 2009, the United States Department of Labor issued new rules regarding the Family and Medical Leave Act. The new regulations were published to authorize the amendments enacted by the National Defense Authorization Act in 2008 and to better clarify outstanding regulations. In its essence, the FMLA offers leave entitlement to eligible workers for up to twelve weeks of job protected, albeit unpaid, leave during a one year time period. This leave may be taken for instances of birth, placement for adoption or foster care of a child, serious medical problems of a worker’s spouse, child, or parent, or grave healthcare issues with the worker themselves, which prevents their ability to meet the functions of their occupation. The newest regulations reiterate that both spouses are eligible to each use a full twelve weeks of leave to care for a family member or their child with a serious health condition even if the spouses work for the same employer.
The revised and amended Family and Medical Leave Act regulations also cater to eligible employees for military caregiver leave, as well exigency leave in qualifying cases. The military caregiver statutes allow an employee that is the spouse, parent, son, daughter, or next of kin with a service member that has a serious injury or illness to take a leave of a total of twenty-six weeks unpaid during a single year period. The grave illness or injuries must be incurred by the covered armed forces member during the course of active duty, which renders the service member medically unfit to perform their job function, according to office, rating, rank, or grade. Exigency leave qualifications allow eligible employees to undergo unpaid, protected leave for up to three months for a “qualifying exigency” stemming from the fact of a workers’ child, parent, or spouse being called to active duty in support of a “contingency” operation. Exigency leave includes military events, related activities, short notice deployments, childcare, school activities, and other childcare reasons, as well as tending to financial or legal matters, attending counseling, visiting military member during short term rest and recuperation and other duties that arise from a service member’s active call to duty.
Likewise, employers now have four main types of notice required by the statutes of the FMLA, including General Notice, Eligibility Notice, Rights and Responsibilities Notice, and Designation Notice. Employer’s failure to give these notices may jeopardize an employee’s ability to receive their FMLA rights, as well as present possible liability owed to employee for economic losses sustained as a direct result of the unnoticed leave. The newer additions to the FMLA greatly alter the process during which employers handle leave requests under the act.
The General Notice provided to employees must detail the FMLA provisions under which the leave is requested, as well as offer all information how to file complaints of the act to the Department of Labor. Covered employers, which employ fifty or more workers must post the General Notice regardless whether any of their workers are FMLA eligible. New regulations will permit the use of electronic posting, such as on a company website, and covered employers must distribute the General Notice to workers, such as through an office handbook.
Employers have to provide an Eligibility Notice within one business week of a worker’s request for FMLA leave, or within one business week of becoming aware of a worker’s leave and the possible qualifications under the FMLA. Older regulations only gave employers two days to address these requests. Newer regulations require a notice from employers, which denies leave requests under the FMLA, to include the reason for ineligibility of the employee. For example, to be eligible, employees must have been employed with that employer for at least a total of 12 months and have worked at least one thousand two hundred and fifty hours in the year immediately preceding the leave.
The Rights and Responsibility Notice must be given to an employee each time an Eligibility Notice is offered to a worker. The notice must outline the specific expectations and duties of the workers, as well as explain potential consequences for failing to meet these obligations.
Designation Notices must be given to workers within five business days of when enough information is available to ascertain whether or not the employee is applicable for FMLA leave. Notices must inform a worker whether or not the leave is going to be noted as a FMLA protected leave. The newest FMLA regulations also note that if the employer requires a fitness-for-duty certification prior to returning to work, the employer must provide written notice of that requirement or verbal notice if notice is provided in a written policy, and the employer must include a list of the essential functions of the employee's position. Also, new regulations note that if information in the Designation Notice is altered over time, the employer must give written notice of all applicable alterations to worker within five working days.
A number of samples of the Notice can be found on the Department of Labor website at: http://www.wagehour.dol.gov/.
Employees, per the old and new FMLA regulations, have to a duty to provide certain notices to their employer. The most notable of these notices is providing the employer enough information outlining a possible need for FMLA relief and leave. Simply not attending one’s job function by calling out for a given time period is not sufficient to provide FMLA protection, as at least thirty days notice is advance is necessary if the need to leave is foreseeable ahead of this time period. Under newer regulations in the FMLA, any employee not offering sufficient notice within sufficient time must also provide reasons as to why this notice was not given within the certain time period, even upon demand from the employer. If early notice is not feasible, workers must provide notice to employers as soon as possible. In the event a requested leave is from a certified FMLA condition previously, workers are currently required to inform their employer of this information.
In the event the leave request is for reduced scheduling or intermittent periods, a worker must inform their employer of the reasoning behind the leave and new schedule treatment, as well as make any applicable requests and notice for reduced schedule or intermittent leave.
The new FMLA regulations also made several changes to the certification process of protected leave requests. One example of this includes the fact that any worker now has seven days from the first date of inability to work to visit a healthcare provider. Providers no longer check what type of qualifying leave an individual is seeking. The employer now reserves the right to determine whether information offered by providers constitute a performance inhibiting condition. If feasible, the worker must give the appropriate certification in a time period before the leave commences. Also, the newest FMLA regulations enhance the amount and type of information employers may request from a certification notice. An employer can now request recertification at least every time period of six months. Employer, also, are instructed to utilize the newest medical certification forms from the Department of Labor.
A given employer may also now deny or delay Family and Medical Leave Act requests to workers who does not comply with an employer’s reasonable and customary notice requirements for undergoing a leave of absence. Likewise, an employer can deny FMLA protection if a worker fails to respond to reasonable inquiries to determine whether requested leave is FMLA-qualifying and the failure to respond by the worker prevents the employer from being able to make any informed determination.
Any workers seeking qualifying exigency leave must give notice to their employers as soon as possible, regardless of how far into the future this leave may possible be. Requesting exigency leave requires workers to provide sufficient information to indicate that an applicable member of family is on active military duty.
The aforementioned information is simply a cursory outlook at the new FMLA regulations and changes, and is by no means a consummate discussion of the requirements designated under FMLA laws.
Employers and employees should always seek the counsel of a lawyer or specialist when facing FMLA leave disputes or questions. For more information, contact Denise Tataryn at Mansfield, Tanick & Cohen, PA.