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November 17, 2008
New FMLA Rules: More Important Changes

We've already written about 10 significant changes included in new Family and Medical Leave Act (FMLA) rules, which the Department of Labor released late last week. However, there are more revisions you should note.

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Here are some more significant changes. They cover intermittent leave, substitution of paid leave, employer notice requirements, employer failure to provide notice, and military family leave. The new FMLA rules are effective on January 16, 2009.

Intermittent Leave

As we mentioned in the previous article, employees who take intermittent leave for planned medical treatment have an obligation to make a reasonable effort to schedule such treatment so as to not disrupt unduly the employer's operations. This is a change from the old regulations. Old regulations said that the employee had to "attempt" to do so only.

The rules clarify that temporary transfers are allowed for employees taking planned intermittent leave only (the department declined to expand temporary transfers to unplanned, unscheduled or unforeseeable intermittent leave).

The final rule also clarified that accounting for leave need not be in the smallest increments that the employer's timekeeping system can handle, but rather in the smallest increments the employer accounts for in other types of leave, provided it is not greater than one hour. This is a change from proposed regulations.

The new rules prohibit employers from charging employees for period of time that they are working (e.g., stop working ½ hour before end of shift, cannot be charged for one hour of leave).

Substitution of Paid Leave

An employee's right to substitute accrued paid leave is limited by the terms and conditions pursuant to which the applicable leave is accrued, as long as those terms are non-discriminatory, the rules clarify. An employer may limit substitution of paid sick, medical or family leave to those situations for which the employer would normally provide such paid leave (e.g., such policies may restrict the use of paid leave only to the employee's own health condition or to specific family members). Employers must allow substitution of paid vacation, personal leave, or "paid time off" for any situation covered by the FMLA. In all cases, however, the normal procedural rules subject to which the leave was accrued apply--unless waived by the employer--regardless of the type of paid leave substituted. For example, if an employer's paid sick leave policy prohibits the use of sick leave in less than full day increments, employees would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave. Similarly, if an employer's paid personal leave policy requires two days' notice for the use of personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days' notice. Employers, of course, may choose to waive such procedural rules and allow an employee's request to substitute paid leave in these situations, but they are not required to do so. Additionally, employers may choose to waive procedural requirements even in the absence of an employee request to do so.

Employer Notice Requirements

The final rule consolidates all employer notice requirements into a "one-stop" section of the regulations to clear up some conflicting provisions and time periods.

  • The new regulations contain a new general notice prototype. If an employer has no handbook or other written materials, it must provide the general notice to new employees upon being hired .
  • Absent extenuating circumstances, the timeframe for an employer to respond to an employee's request for leave is extended from 2 business days to 5 business days of the employee's request for leave or of the employer acquiring knowledge that the leave may be FMLA qualified.
  • As mentioned in the previous article, a list of essential job functions must be provided with the designation notice if the employer will require that the fitness-for duty certification address the employee's ability to perform the essential functions of the position.
  • Only one designation notice is required for each FMLA-qualifying reason per leave year, regardless of whether the leave is taken as a continuous block of leave or on an intermittent or reduced leave schedule basis.
  • In situations in which the amount of leave to be taken is not known at the designation stage (e.g., when unforeseeable intermittent leave will be needed, employer is to inform the employee of the number of hours counted against the FMLA leave entitlement only upon employee request, and no more often than every 30 days if FMLA leave was taken during that period.
  • Employer may notify the employee of the hours counted against the FMLA leave entitlement orally and follow up with written notification on a pay stub at the next payday (unless the next payday is in less than one week, in which case the notice must be no later than the subsequent payday).

Employer Failure to Provide Notice

The updated rule contains technical changes to be consistent with the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. In light of the Supreme Court's decision in Ragsdale , the department stated that an employee isn't automatically FMLA-eligible just because employer fails to provide the required eligibility notices to employees or provides incorrect information. The rule clarifies that if an employee suffers individual harm because the employer fails to follow the notification rules, the employer may be liable.

Military Family and Caregiver Leave

In January 2008, President Bush signed a law that allows employees to take leave because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces in support of a contingency operation. In the new regulations, a qualifying exigency leave is limited to service members called up to duty in National Guard and/or Reserves, and certain retired members of service (not regular career service or state). It mimics the leave provision in 10 USC 101(13)(B)'s definition of "active duty." The rule defines "qualifying exigencies" as: (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 where the employer and employee agree to the leave.

The new law also allows eligible employees to take up to 26 workweeks for leave during a single 12-month period if the employee is the spouse, son, daughter, parent, or next of kin caring for a military service member recovering from an injury or illness suffered while on active duty in the armed forces. Under the new regulations for military caregiver leave, the term "active duty" includes members of the regular armed forces (not just Guard/Reserves)--this differs for exigency leave. Similarly, for caregiver leave, the term "active duty" is more expansive than for exigency leave. Whether or not an injury or illness arose from active duty is a determination to be made by the treating healthcare professional as part of certification.


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