Regulatory Alert: Revised FMLA Notice for 2009 Released
The Department of Labor's Wage and Hour Division published a final rule amending the Family and Medical Leave Act of 1993 (FMLA), which is effective Jan. 16, 2009. The new revised FMLA notice for 2009 was released on Dec. 18, 2008, and it is now included on our federal labor law poster. View highlights of the final rule.

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The Department of Labor's Wage and Hour Division is set to publish final FMLA regulations in the Monday, November 17 issue of the Federal Register. These final rules will address the Supreme Court Ragsdale decision as well as the military family leave provisions that were included in the National Defense Authorization Act signed into law in January 2008. Other changes have also been made.

The final rule will include new documentation, including the following:
• Revised medical certification forms (one for family members, one for the employee),
• Certification of qualifying exigency for military family leave form,
• Certification for serious injury or illness of a military servicemember,
• Notice of eligibility, rights, and responsibilities form,
• Designation notice form, and
• Revised FMLA poster.

The final rule is scheduled to become effective January 16, 2009.

According to the Director of Compliance Assistance Office of the Wage and Hours Division - Department of Labor, the anticipated Federal FMLA posting will not be available until sometime in the fall.

There are still many pending issues and steps to take in order for the department to get the FINAL go-ahead to create the revised Federal FMLA poster. We will continue to monitor this and other possible updates and inform you as soon as we receive additional information.

Although not included in the actual proposed changes to FMLA regulations, the DOL is also seeking public comment on issues to be addressed in final regulations regarding military family leave. The military provisions stem from the National Defense Authorization Act for FY 2008, which amended the FMLA to provide leave to eligible employees of covered employers to care for injured servicemembers and because of any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty status in support of a contingency operation.

The provisions of this amendment providing FMLA leave to care for a covered servicemember became effective on January 28, 2008, when the law was enacted. The provisions of this amendment providing for FMLA leave due to a qualifying exigency arising out of a covered family member's active duty (or call to active duty) status are not effective until the Secretary of Labor issues regulations defining "qualifying exigencies." The preamble to the proposed regulations provides some insight as to what qualifying exigencies may include, but the DOL turns to the stakeholders for their comments.

Because of the new military family leave provisions, a revised poster will be needed. Currently, there is a non-mandatory poster with information on the new provisions. Employers may use this non-mandatory poster in the interim until a new poster is developed.

The DOL indicated a sense of urgency to issue regulations governing the military family leave provisions.

On February 11, the Department of Labor (DOL) published proposed changes to the 15-year-old Family and Medical Leave Act (FMLA). The changes are based on the DOL's experience administering the law, two previous DOL studies of the FMLA in 1996 and 2001, several U.S. Supreme Court and lower court rulings, and the public comments received in response to a Request for Information ("RFI") published in the Federal Register in December 2006 requesting information about experiences with the FMLA and comments on the effectiveness of these regulations.

In part, the proposed regulations respond to legal challenges, such as the penalties when an employer fails to designate leave (Ragsdale v. Wolverine World Wide, Inc.), as well as cases involving the definition of a serious health condition.

Some of the proposed changes include the following:

• If employers do not include FMLA general notice information in their handbooks, they would be required to provide such notices to their employees at least annually.
• Employees would be required to provide an explanation of the need for leave, or risk having the leave denied. For intermittent leave, calling in sick without providing more information would not be sufficient notice.
• Upon a request for FMLA leave, employers would need to provide an eligibility notice within five business days.
• After determining whether the leave qualifies for FMLA leave, employers would be required to provide a designation notice within five business days of making the determination. This would include the number of hours, days, or weeks that would be counted against the employee's leave entitlement. If this is not possible, then employers must provide such information every 30 days.
• Employers may contact an employee's health care provider to obtain clarification or authentication, but not additional medical information. Such contact must comply with the HIPAA privacy rule. If employees do not provide authorization allowing the employer to clarify the certification with the health care provider, and the employee does not provide for the clarification, leave may be denied.

Comments are being accepted until April 11, 2008.

According to the new FMLA leave expansion bill (HR 4986) recently signed by the President, a serious injury or illness is more comprehensive and defined. A serious injury or illness is one incurred by a servicemember in the line of duty on active duty in the Armed Forces, including the National Guard or Reserves, that may render the member medically unfit to perform the duties of his or her office, grade, rank, or rating. For outpatient status, the servicemember is to be assigned to a military medical treatment facility as an outpatient, or to a unit established for the purpose of providing command and control of servicemembers receiving medical care as outpatients.

Eligible employees with family members in the military who meet the above definition are entitled to a total of up to 26 weeks of leave to care for the injured or ill servicemember. These provisions became effective upon the President’s signature on January 28, 2008.

The National Defense Authorization Act, recently signed by the President, includes provisions that expand the reasons for leave and explain who is entitled to leave under the Family and Medical Leave Act (FMLA). Under the new provisions that are currently in effect, eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered servicemember are entitled to a total of up to 26 weeks of leave to care for the injured or ill servicemember.

The law introduced an additional group of employee family members as "next of kin," which includes the nearest blood relative of an individual. This goes beyond the original definition of an immediate family member and allows a broader definition of "family" for which eligible employees may take advantage of the law.

For example, if an employee has a sibling who is injured in the line of duty, the original FMLA provisions would not cover the situation. However, under the expansion, the employee would be able to take up to 26 weeks to care for his or her sibling. These provisions became effective upon the President’s signature on January 28, 2008.

President Bush recently signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA). It amends the Family and Medical Leave Act of 1993 (FMLA) to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

The provisions in the NDAA providing this leave are effective as of Jan. 28, 2008. The Department of Labor is working quickly to prepare more comprehensive guidance regarding rights and responsibilities under this new legislation. In the interim, the Wage and Hours Division will require employers to act in good faith in providing leave under the new legislation. Because the NDAA amends the FMLA, FMLA-type procedures should be used as may be appropriate (for example, procedures regarding substitution of paid leave and notice).

The NDAA also permits an employee to take FMLA leave for "any qualifying exigency arising out of the fact that the spouse, or a 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." By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency." DOL is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.

Yesterday, the President signed HR 4986, a defense authorization bill, which included leave provisions for military family members. The law expands the Family and Medical Leave Act, and adds two new types of leave:

1. Up to 12 weeks of unpaid leave for eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered servicemember for any qualifying exigency (this term is to be defined by regulations).
2. Up to 26 weeks of unpaid leave for eligible employees who are the spouse, son, daughter, parent or next of kin of a covered servicemember who has incurred a serious injury or illness in the line of duty. For the 26 weeks, servicemembers are those in the Armed Forces, including the National Guard or Reserves who are undergoing medical treatment, recuperation, or therapy. The care may be through outpatient status or the individual is otherwise on the temporary disability list because of the condition. The serious health condition must render the individual as medically unfit to perform the duties of the office, grade, rank, or rating.

The law introduces the definition of "next of kin" to be the nearest blood relative of an individual. This definition goes beyond the original definition of immediate family member. If the need for leave under these new provisions is foreseeable, employees must provide notice to the employer as soon as reasonable and practicable.

Congress has passed the Defense Authorization Bill (HR 1585) with a House Report from early December that includes a provision to expand FMLA for families of servicemembers. Under the provision, eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered servicemember — who is on active duty or called to active duty — is entitled to up 12 weeks of FMLA. In addition, eligible employees will be entitled to up to 26 workweeks of leave during a 12-month period to care for a servicemember who is a family member and who has a serious injury or illness.

Servicemembers are those in the Armed Forces, including the National Guard or Reserves who are:

• Undergoing medical treatment;
• Recuperation; or
• Therapy.

This may be through outpatient status or otherwise on the temporary disability retired list because of a serious injury or illness. The bill introduces the definition of "next of kin" to be the nearest blood relative of an individual. This may go beyond the current definition of immediate family member. The definition of a "serious health condition" for servicemembers is also included, and refers to the individual being medically unfit to perform the duties of the office, grade, rank, or rating.

Like the current provisions, employees would be able to elect, or employers may require substitution of accrued paid leave. Notice provisions for foreseeable leave are also included in the bill. The notice must be reasonable and practicable. Employers would be able to require certification for employees taking leave, and the details of this requirement would be spelled out in regulations. The bill now goes to the White House, where the President is expected to sign it.

As promised, Congress got busy reworking a defense bill (HR 5185) President Bush vetoed late last year upon their return from break. Under the original bill, eligible employees would be entitled to up to 12 weeks of FMLA. These are employees who are the spouse, son, daughter, parent, or next of kin of a covered servicemember who is on active duty or called to active duty. In addition, eligible employees would be entitled to up to 26 workweeks of leave during a 12-month period to care for a servicemember who is a family member and who received a serious injury or illness in the line of duty.

A new bill (HR 4986) includes those same provisions, and has already passed the House and the Senate. It has been speculated that the President may sign it into law by the end of the month.