On January 28, 2008, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (the “Act”) (Pub. L. 110–181). The Act amends the Family and Medical Leave Act of 1993 (“FMLA”) to provide for two new types of leave for eligible employees who are family members of servicemembers. The Act provides an eligible employee up to 26 workweeks of unpaid leave in a single 12- month period to care for a family member who suffers a serious illness or injury while on active military duty. The Act also provides an eligible employee with up to 12 workweeks of unpaid leave in a single 12-month period for a “qualifying exigency” when a family member is on active duty or is called to active duty in the Armed Forces. The Act is generally effective January 28, 2008. Closely following passage of the Act, on February 11, 2008, the Department of Labor (“DOL”) issued proposed regulations on the FLMA (“proposed regulations”) which, in part, address the changes made by the Act.

Background

A “covered employer” for the purposes of the FMLA includes private-sector employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or prior calendar year. FMLA also applies (regardless of the number of employees) to all public agencies and local educational agencies (e.g., both public and private elementary and secondary schools). FMLA provides eligible employees with up to 12 workweeks of unpaid leave in a single 12-month period. Prior to passage of the Act, eligible employees were entitled to unpaid leave:

• for the birth of and care for a newborn child;
• for the placement of a child for adoption or foster care;
• for an employee’s own serious health condition; or
• to care for an immediate family member (i.e., spouse, child or parent) with a serious health condition.

To be eligible for FMLA leave, an employee must have worked for his or her employer for at least 12 months and worked a minimum of 1,250 hours of service in the prior 12 months. The Act adds two new FMLA leave entitlements which are discussed in further detail below.

Leave to Care for an Injured Servicemember

Under the Act, an eligible employee who is the spouse, child, parent, or next of kin (i.e., nearest blood relative) of a “covered servicemember” is entitled to a total of 26 workweeks of unpaid leave during a single 12-month period to care for the covered servicemember. The Act defines a “covered servicemember” as a member of the Armed Forces (including the National Guard or Reserves) who is:

• undergoing medical treatment, recuperation, or therapy;
• is otherwise in outpatient status; or
• is on the temporary disability retired list for a “serious injury or illness.”

The Act defines “serious injury or illness” as an injury or illness that the servicemember incurred in the line of duty while on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the servicemember’s office, grade, rank or rating.

The 26 workweeks of servicemember family leave may be taken at once, intermittently or on a reduced leave schedule. These 26 workweeks are the maximum amount of leave an eligible employee may take in a single 12-month period, and this includes any FMLA leave an eligible employee might take during the same 12-month period for reasons unrelated to caring for the covered servicemember. For example, an employee would not be entitled to 26 workweeks of leave to care for a covered servicemember and an additional 12 workweeks for the birth or adoption of a child.

In the preamble to the proposed regulations, the DOL notes that there are several open questions surrounding this new leave entitlement. For example, it is unclear whether the 26-workweek leave entitlement should be interpreted to apply per covered servicemember. Could an eligible employee take 26 workweeks of leave to care for his or her spouse who is a covered servicemember in a 12- month period, and then take another 26 workweeks of leave to care for his or her child who is a covered servicemember in a separate 12-month period? The DOL seeks the public’s comments on these issues so that it may consider these comments when finalizing the proposed regulations.

Leave When Family Member is Called to Active Duty

The Act also allows an eligible employee to take up to a total of 12 workweeks of unpaid leave during a single 12-month period for a “qualifying exigency” arising because the eligible employee’s spouse, child, or parent is on active duty, or has been notified of a call or order to active duty in the Armed Forces. The DOL has not yet defined the term “qualifying exigency.” However, the DOL’s initial view is that leave for a “qualifying exigency” should be limited to non-medical related matters (e.g., making arrangements for child care; making financial and legal arrangements to address the servicemember’s absence; attending to farewell or arrival arrangements for a servicemember, etc.). This provision of the Act is not effective until the DOL issues final regulations defining the term “qualifying exigency.” Although this provision of the Act is not yet effective, the DOL encourages employers to provide this type of leave to eligible employees in the interim.

Required Notification by Employee

If an eligible employee seeks to take FMLA leave to care for a covered servicemember, the employee must provide their employer with 30 days advance notice if the need for leave is foreseeable. If 30 days advance notice is not practicable (i.e., because of unforeseeable circumstances), the employee must give notice as soon as is reasonable and practicable. Further, if an eligible employee seeks to take FMLA leave due to a “qualifying exigency,” the employee must give notice to the employer as soon as is reasonable and practicable.

Continuation of Health Plan Coverage

As is the case with other types of FMLA leave, employers must give eligible employees who take leave under the new FMLA leave entitlements described above the option to continue coverage under their health plan at the same level and under the same conditions as provided prior to the leave. Further, when the employee returns to work, he or she must be reinstated in group health coverage on the same terms and conditions as existed prior to the leave (i.e., the employee cannot be subject to a waiting period or an exclusion for pre-existing conditions upon reenrollment).

As noted above, these new FMLA leave entitlements are generally effective January 28, 2008. In response to these amendments to the FMLA, employers should revise their policies and procedures to ensure that eligible employees are granted appropriate leave to care for their family members who are covered servicemembers. Further, employers should communicate to their employees the right to take these additional FMLA leave entitlements. Finally, employers should amend their health plan documents and summary plan descriptions to ensure that these documents are in compliance with the provisions of the Act.

Comprehensive Update of FMLA Regulations

The proposed regulations are the first comprehensive update of the FMLA regulations since they were first issued in 1995. The DOL plans to issue the final FMLA regulations by the end of this year. The following briefly summarizes the key proposed changes to the regulations that may impact your employee benefit plans. The proposed regulations also contain numerous provisions that impact employment law that are not addressed in this article. You may want to consult with your employment counsel regarding any employment law aspects of the proposed FMLA regulations.

New Definition of Eligible Employee

As stated above, to be eligible for FMLA leave, an employee must have worked for his or her employer (who is a covered employer), for at least 12 months and worked a minimum of 1250 hours of service in the prior 12 months. The proposed regulations clarify that this 12-month period does not have to be consecutive. However, under the proposed regulations, (and subject to certain exceptions) employers now have the option of disregarding periods of employment that precede a continuous break in service of five years or more. For example, if in 2008 an employee worked five months for an employer and worked for the same employer for two full years in 1997 through 1998, the employer would not be required to take into consideration the two years of prior employment when determining whether the employee is currently eligible for FMLA leave.

Employer Liable for Harm to Employee whose Health Insurance is not Reinstated

The current regulations provide that if an employee fails to pay his or her share of premiums during FMLA leave and the employer allows the employee’s health insurance to lapse due to this failure, the employer has a duty to reinstate the employee’s health insurance when the employee returns to work. The proposed regulations make clear that if the employer does not reinstate the employee’s health insurance upon his or her return to work, the employer is liable for harm suffered by the employee. This may include:

• benefits lost by reason of the violation;
• other actual monetary losses sustained as a direct result of the violation; and
• appropriate equitable relief tailored to the harm suffered.

New Employer Notice Requirements

Under the proposed regulations, employers are required to distribute three types of notices to eligible employees. These notices include the “general notice,” “eligibility notice” and “designation notice.” Under the “general notice” requirement, employers are required to post a notice explaining the FMLA’s provisions and provide procedures for filing complaints of violations of FMLA. Employers also are required to provide information concerning an employee’s rights and obligations under FMLA in any employee handbooks. To streamline this “general notice” requirement, the proposed regulations state that the same “general notice” may be both posted and distributed. The penalty for not posting the “general notice” has been increased to $110 per offense.

When an employee requests FMLA leave, the employer also is responsible for notifying the employee of his or her eligibility to take FMLA leave (i.e., whether the employee has been employed for at least 12 months and has worked for a minimum of 1,250 hours of service in the prior 12 months). The proposed regulations require that this “eligibility notice” be sent to the employee within 5 business days (a change from the current requirement of 2 business days) after the employee either requests leave or the employer acquires knowledge that the employee’s leave may be for an FMLA qualifying reason. If the employee is not eligible for FMLA leave or does not have any FMLA leave available, the notice must state the reasons why the employee is not eligible for FMLA. For example, the employer might need to indicate that an employee has not met the 12-month eligibility requirement.

Under the proposed regulations, once an employer has sufficient information to determine whether a requested leave qualifies as FMLA leave, the employer must notify the employee within five business days (increased from the current requirement of two business days) that the leave is designated as FMLA leave. The proposed regulations add that this “designation notice” must inform the employee of the number of hours, days or weeks, if possible, that will be designated as FMLA leave. The proposed regulations allow employers to provide an employee with both the eligibility notice and designation notice at the same time when the employer has adequate information to designate the leave as FMLA leave at the time the employee requests the leave. The DOL has issued optional model notices for each of the three types of notice.

Further, under the current FMLA regulations, if an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken by the employee does not count against the amount of leave for which the employee is eligible under FMLA. In order to be consistent with the holding of the Supreme Court case Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81 (2002), the DOL has proposed deleting the last sentence of this section of the current regulations to clarify that if an employer fails to properly designate a leave as FMLA leave, the employer will not be required to provide any additional FMLA leave if the employee has already received his or her 12 (or 26 as applicable) workweeks of FMLA leave.

New Employee Notice Requirements

The proposed regulations address the amount of notice an employee must give to his or her employer before taking an FMLA leave. If the leave is foreseeable, the employee is required to give the employer 30 days advance notice. The proposed regulations clarify that if 30 days advance notice is not practicable, the employee must at a minimum provide the employer with verbal notification within one or two business days of learning of the need for leave. When requesting leave, an employee is not required to specifically ask for FMLA leave. However, the proposed regulations add the requirement that when an eligible employee requests leave, he or she must provide “sufficient information” to his or her employer to make the employer aware that an FMLA right may be at issue. Accordingly, when requesting leave, the eligible employee must inform the employer:

• that the employee is unable to perform the functions of his job (or that a family member is unable to participate in regular daily activities);
• of the anticipated length of the absence; and
• whether the employee (or family member) intends to visit a health care provider or is receiving continuing treatment.

If an employee must take a leave that is unforeseeable, the employee or the employee’s spokesperson (e.g., spouse, adult family member or other responsible party) must provide notice to the employer “as soon as practicable.” In the preamble to the proposed regulations, the DOL states that it expects that (except in extraordinary circumstances), an employee should be able to provide notice of the need for leave to their employer at least prior to the start of his or her work shift.

Changes to Medical Certification Requirements

An employer may request, within five business days of an employee’s request for leave, that the employee provide medical certification from his or her health care provider (employers currently have two business days to request this certification). The proposed regulations add the requirement that if a certification provided by an employee is incomplete or insufficient (i.e., one or more entries are blank, etc.) then the employer must state in writing what additional information is necessary and provide the employee with seven calendar days to cure the deficiency. The DOL further clarifies that it is the employee’s responsibility to either provide complete and sufficient certification, or to furnish the health care provider providing the certification with any necessary authorization required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) so that the health care provider may release the necessary medical certification to the employer.

Under the proposed regulations, an employer may contact the employee’s health care provider for purposes of clarification and authentication of the employee’s medical certification. Notably, an employer may contact the health care provider directly (without the employee’s permission) if the employer simply seeks to determine the certification’s authenticity (i.e., verifying that the form was completed and/or authorized by the health care provider who signed the document). The proposed regulations eliminate the requirement that the employer’s health care provider (as opposed to the employer itself) contact an employee’s health care provider for purposes of authenticating or clarifying the employee’s medical certification.

The proposed regulations also provide guidance regarding the recertification rules. An employer may not request recertification more often than every 30 days, and when a certification indicates that the medical condition will last for an extended period of time, the employer may obtain recertification every 6 months. The proposed regulations also provide guidance on the rules regarding fitness-for-duty certification. Instead of providing the employer with a “simple statement” that he or she is able to return to work, the employee must obtain a certification from his or her health care provider that the employee is able to resume work.

Conclusion

As noted above, these revisions to the FMLA regulations are only proposed regulations. They are subject to a 60-day public comment period that ends on April 11, 2008. We look forward to the issuance of the final FMLA regulations after the end of this public comment period.