Newsletter Sign-up

The 201-page rule, which went into effect Jan. 16, alters the definition of "serious health condition," deletes an employer penalty provision, clarifies the medical certification process, and makes other changes.

Understanding the new rules is important for human resources and workers' compensation professionals since employers can place employees who are on workers' comp leave on simultaneous FMLA leave. It is important to note the following changes:

• Definitional changes. The rule retains the six individual definitions of "serious health condition" but clarifies that if an employee with a serious health condition takes more than three consecutive days of leave with at least two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity.

• Ragsdale penalty. A penalty provision in the prior regulations stated that when an employer failed to properly notify an employee that it designated leave as FMLA leave, the leave taken did not count against the employee's FMLA entitlement.

The U.S. Supreme Court ruled that because this penalty could result in the employee receiving more than 12 weeks of FMLA leave in a year, it was inconsistent with the statutory limit of only 12 weeks of FMLA leave, in Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81 (U.S. 2002). The rule removes these penalties to be consistent with the Court's decision. It also clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

• Medical certification process. The new rule states that if an employee submits insufficient certification from a medical provider, then only specific parties -- a health care provider, HR professional, leave administrator, or management official other than the employee's supervisor -- can call the employee's health care provider for purposes of clarification and authentication. The employee's direct supervisor may not make the contact.

When medical certification is incomplete, the employer can deny FMLA leave. It is the employee's obligation to either provide a complete and sufficient certification or provide any necessary authorization for the health care provider to release a complete and sufficient certification directly to the agency.

• Notice requirements. Under the previous employee notice provision, employees could notify their employers of their need for FMLA leave up to two full business days after an absence. Now, employees must follow their employer's customary call-in procedures unless there are abnormal circumstances.
• Light duty. The rule clarifies that time spent in light duty does not count against an employee's leave entitlement. An employee voluntarily doing light-duty work is not on FMLA leave.
• Waiver of claims. The DOL has long maintained that employees may voluntarily settle their FMLA claims without court or DOL approval, and the new rule formalizes that. However, prospective waivers of FMLA rights are still prohibited.
• Professional employer organizations. The rule adds special provisions governing PEOs. The determination of whether a PEO is a joint employer for FMLA coverage purposes turns on the economic realities of the situation and must be based upon all the facts and circumstances.

The final rule also adds a sentence at the end of Section 825.106(c) to clarify that, unlike the situation involving traditional placement agencies, the client employer most commonly would be the primary employer in a joint employment relationship with a PEO.

• Gaps in employment. The rule provides that employment periods prior to a break in service of seven years or more do not have to be counted in determining whether the employee has been employed by the employer for at least 12 months, unless the breaks were related to military service or a union contract provides otherwise.
• Eligibility while on leave. The final rule clarifies that an employee may attain FMLA eligibility while out on leave. "Because an employee remains employed while out on employer-provided leave, the employee becomes eligible under the statutory definition upon reaching the 12-month threshold," the DOL stated.
• Qualifying exigency leave. The final rule also implements leave provisions created by the National Defense Authorization Act for FY 2008.

Eligible employees may now take 12 weeks of leave due to any "qualifying exigency," arising out of the fact that the employee's spouse, or a son, daughter, or parent is on active duty (or has been notified of an impending call or order to active duty) in the National Guard and Reserves (or is a retired member of the regular armed forces or retired reserve who completed 20 years of service and is called to duty) in support of a contingency operation.

The regulations define a qualifying exigency as a short-notice deployment or other event. The FMLA also provides that an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who suffers a serious injury or illness on active military duty is entitled to 26 workweeks of leave during a single 12-month period to care for the service member. This includes the 12 weeks of regular FMLA leave and is not in addition to it.

BY LESLIE W. LAKE, ESQ.

Leslie W. Lake, Esq., is an editorial director at LRP Publications. For more information, visit the Department of Labor Web site at www.dol.gov.

January 22, 2009

Copyright 2009© LRP Publications