January 14, 2009
New FMLA Regulations Take Effect Friday!
The new Family and Medical Leave Act regulations take effect on Friday, January 16.
These amendments contain two new provisions that pertain to military families:
(1) Military Caregiver Leave—under this new provision, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a "covered servicemember" is entitled to take up to 26 weeks of leave during a single 12-month period to care for the servicemember. A "covered servicemember" includes a current member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is in an outpatient status, or on a temporary disability retired list, for a serious injury or illness incurred in the line of duty while on active duty. This leave expands the number of weeks of FMLA from 12 to 26 for qualifying families and also expands the protection to additional family members, i.e., next of kin.
(2) Exigency Leave—under this new provision, an eligible employee who is the spouse, son, daughter, or parent of a member of the National Guard and the Reserves is entitled to up to 12 weeks of FMLA-protected leave to use for "any qualifying exigency" arising out of the fact that a covered military member is on active duty or is called to active duty. The Department of Labor regulations list the following types of circumstances that will qualify as a "qualifying exigency:" (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.
In addition, there are several procedural changes to the FMLA that clarify the previous regulations. The most important of these include provisions that:
- Extend from 2 days to 5 days the time the employer, after it becomes aware of the need for leave, must provide the eligibility notice;
- Clarify the definition of serious health condition by providing that the two visits to a health care provider must occur within 30 days of the beginning period of incapacity and the first visit must take place within 7 days of the first day of incapacity;
- Clarify that time spent voluntarily working light duty does not count against an employee's FMLA leave entitlement;
- Require that the designation notice be in writing and must notify employee as to why leave was not determined to be FMLA-qualifying, the amount of time that will be counted against FMLA entitlement, and any mandatory substitution of paid leave. Also requires that if the employer is going to require a fitness-for-duty certification, the designation notice must include a list of the job's essential functions;
- Require that if an employer's representative contacts the health care provider, the representative must be a health care provider, HR professional, leave administrator, or management official, but not the employee's direct supervisor.;
- Codify the Department of Labor's position that employees may voluntarily settle or release FMLA claims without court or Department of Labor approval.
In addition to the new regulations, the Department of Labor has also issued the following new forms:
- WH-380-E—New Certification of Health Care Provider for Employee's Serious Health Condition
- WH-380-F—New Certification of Health Care Provider for Family Member's Serious Health Condition
- WH Publication 1420—Notice to Employee of Rights Under FMLA
- WH-381—Notice of Eligibility and Rights and Responsibilities
- WH-382—Designation Notice
- WH-384—Certification of Qualifying Exigency for Military Family Leave
- WH-385—Certification of Serious Injury or illness of Covered Servicemember for Military Family Leave.
These forms may be found on the Department of Labor website at http://www:dol.gov
If you need assistance in revising your policies or if you have any questions regarding the new FMLA regulations, please contact Nelson Mullins Labor and Employment Law Certified Specialist Debbie Durban at 803.255.9465 or debbie.durban@nelsonmullins.com. or any member of the Nelson Mullins Employment Law team.
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.