The Federal Sector FMLA Blog

Is Paid Military Caregiver Leave on the Horizon?

On January 28, 2008, the FMLA was amended to allow eligible employees to take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered servicemember suffering from a serious injury or illness incurred in the line of duty while on active duty.  The leave, however, is unpaid.  That may change.

Senator Richard Durbin (D-IL), with 12 cosponsors, introduced S. 543, the Veteran and Servicemember  Support Act of 2009.  The Act directs the VA, in collaboration with the Secretary of Defense, to set up a two-year pilot program at six facilities nationwide to train family member caregivers who agree to provide caregiver services to eligible veterans and members of the Armed Forces.  Caregivers who complete the training program will be certified as caregivers.  The program proposes to pay eligible family caregivers a reasonable amount for providing care service.  The amount will vary depending on the amount and intensity of care needed.   

If enacted, the legislation could lead to the federal government (at the moment) paying certified family members to care for their seriously injured or ill coveredservicemembers in the Armed Forces.  If the FMLA applies, the combination would result in taxpayer paid military caregiver leave. 

FMLA military caregiver leave does not apply to veterans.  However, if the veteran is a covered family member and has an FMLA-qualifying serious health condition, the program may also result, as a practical matter, in taxpayer paid FMLA leave. 

Comment:  Legislation proposing paid leave is all the rage this summer.  Given that Senator Durbin in the Majority Whip, the legislation stands a very good chance of passing in the Senate.  However, it will be interesting to see what actually makes it through the legislative sausage factory given the economic climate.   

Employer Policy May Require Employee to Submit Doctor's Note Within a Reasonable Period of Time Verifying that Intermittent Absence Was Due to Approved FMLA Condition

CallTech Communications policy required employees to submit a doctor's note verifying that every intermittent absence is directly related to the employee's medical condition is on file.  The policy applied to intermittent FMLA leave. If the employee provided the doctor's note, absences covered by the note would not be used against the employee pursuant to the employer's points-based attendance policy.    

Stephanie Smith was employed at CallTech Communications for a little over a year until her terminated. Throughout her employment MS. Smith suffered from chronic major depressive disorder.  As a result of her condition, she had attendance issues. She requested, and was granted,intermittent FMLA leave for her condition.  Ms. Smith accumulated points for absences that placed her job in jeopardy.  Management told her that she could avoid being terminated if she provided doctor's notes covering sufficient absences to reduce her attendance point total. CallTech gave Ms. Smith three days to provide the doctor's notes.  When she did not provide the doctor's notes within the three-day period, MS. Smith was terminated. 

Smith sued alleging interference with the FMLA.  The court did not agree.  The court found that CallTech 'was clearly entitled to some form of medical documentation for Ms. Smith's absences even though she had been approved for intermittent FMLA leave for her depression and had verbally informed her supervisor that her absences were related to the condition."  However, the court found that the three-day period she was given to provide the doctor's notes was not reasonable as a matter of law.  The court opined:

While CallTech may not have been required to give Ms. Smith fifteen days to comply with its request, it did have to provide her a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor. 

Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (S.D. Ohio June 10, 2009). 

Comment:  The case illustrates two points: First, an employer's policy may require an employee to provide a doctor's notes to link their current intermittent absence to an approved FMLA condition.  In Smith, the policy did not require the employee to run to the doctor every time.  The policy specifically allowed an employee to provide the doctor's note after a few absences. 

Second, although the amended regulations (825.302(d)) require an employee to abide by an employer's usual and customary requirements for requesting leave, employers would be well-advised to adopt policies that set a reasonable period of time for the employee to provide the doctor's note, with some flexibility that takes into account the circumstances of each case.  A draconian policy with a very short turn around time that also fails to take into account the totality of the circumstances runs the risk of being found invalid.  An employer that enforces such a policy may interfere with an employee's FMLA rights.  Interfering with an employee's FMLA rights is an expensive problem to be avoided.  

Employers Are Not Required to Assume That All Medical Absences Subsequent to Chronic Serious Health Condition Diagnosis Are Related to that Condition

Jeremy Crown was diagnosed with Type I Diabetes in August 2006.  Nissan, his employer, granted his request for 10 days of FMLA leave to cover the absence that led to the diagnosis.  In October 2007, Crown was absent from work for three consecutive days.  Crown claimed that the absences were related to his Diabetes.  Pursuant to Nissan policy, he submitted a medical certification substantiating his request for FMLA leave to cover the absence.  The health care provider who filled out the certification checked the box for an absence of more than three consecutive days.  The health care provider did not check the box for a chronic condition.  Nissan denied the request for FMLA leave because Crown was not incapacitated for more than three consecutive calendar days.  Nissan also assessed Crown with 4 points for unexcused and excused absences.  The four points put him over the company's attendance policy limit.  Crown was terminated.

Crown sued alleging that his termination violated the FMLA.  Crown argued that, notwithstanding the failure of the medical certification to substantiate his request for FMLA leave, Nissan should have granted him FMLA leave anyway.  Crown reasoned that Nissan knew he had an FMLA-covered condition (Diabetes) since August 2006.  It knew that the condition would continue for an indefinite period.  As such, Nissan, Crown argued, should have known that this three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition and was likewise aware that the condition had previously necessitated leave.  Crown contended that he should not be penalized because of the lack of competence or familiarity of the health care provider who filled out the certification.  The court disagreed.  

The court rejected as without merit the argument that Nissan should have known that that his absences were related to his chronic condition despite the health care providers failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition.  The court observed:

By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his health care provider that each period of absence is covered by the FMLA. 

The court went on to observe that "[t]he FMLA does not require an employer to be 'clairvoyant.'"  If an employee fails to provide its employer with the required notice, the employer can deny leave even if the employee has a serious health condition. 

The court awarded summary judgment to Nissan.

Crown v. Nissan North American, Inc., No. 3:08CV418TSL-JCS, 2009 U.S. Dist. LEXIS 47633 (S.D. Miss. June 8, 2009). 

Comment:  To ensure FMLA coverage where an employee or covered family member has a previously established qualifying reason for FMLA leave, it is incumbent on the employee to link the present need for leave with the known qualifying reason.  Courts will not assume such a connection, particular where, as in Crown, the connection is not substantiated in a supporting medical certification. 
The DOL codified the linkage requirement in 29 CFR 825.303(b) of the modified regulations.

The case also teaches employees that they should review the medical certification before handing it in to ensure that it supports the request for leave.  If it does not, or if the employee has any questions regarding the information on the form, the employee should take the matter up with the health care provider before submitting the documentation.  The health care provider should make any corrections on the certification form.  The employee should NOT modify the certification form.    

The MSPB has applied Title I (DOL) employee notice requirements to Title II (OPM) FMLA requirements. 

Still Not Getting It After All These Years: The MSPB Applies the Wrong FMLA Standards

While it was not dispositive of the case, the Board in Smith v. Dept. of the Interior, DC-0752-09-0135-I-1, 2009 MSPB LEXIS 2080 (April 17, 2009) applied the wrong FMLA standard on eligibility.  In so doing, the Board also cited to two different variants of the FMLA as if they were interchangeable. 

Citing 29 USC 2611(2)(A)(ii), the Board incorrectly stated that, to be eligible for FMLA leave, an employee must have been employed with a covered employer for at least 12 months and worked at least 1250 hours of service proceeding the use of FMLA leave.  The Board cited part of the Title I eligibility standard.  The Board did not explain, nor is it otherwise apparent from the facts, why the Title I eligibility standard would apply to Ms. Smith, A GS-7 Secretary with the U.S. Geological Survey. Under Title II, the 12-month of employment (as a Title II employee) eligibility standard is incorporated into the definition of "employee."  5 USC 6381(1)(b).  Title II does not require 1250 hours of service prior to leave commencement in order for a Title II federal employee to be eligible for FMLA leave.

Inexplicably, after incorrectly citing the Title I eligibility standard, without skipping a beat the Board goes on to correctly cite Title II standards by reference to various sections of Title 5 and 5 CFR Part 630.  Apparently, the Board is of the mistaken belief that the statutory and regulatory requirements of Title I and Title II are interchangeable.  The MSPB need look no further than the eligibility requirements to confirm that the statutory and regulatory requirements of the FMLA are not identical and, therefore, are not interchangeable.      

After 16 years, the MSPB needs to accept that Titles I and II of the FMLA apply to different segments of the federal workforce.  Moreover, they are not identical.  If they were Congress would have had no need to create two entirely different statutes and direct two different federal agencies, the DOL and the OPM, to create two separate sets of FMLA implementing regulations.   

The fact that Title II FMLA requirements do not apply to Title I employees is manifest in the OPM regulations.  The OPM regulations specifically exclude from the definition of a Title II covered "employee" any employee covered by Title I of the FMLA.  See 5 CFR 825.1201(b)(2)(iv).  Similarly, the DOL regulations exclude employees covered by Title II from coverage by Title I of the FMLA.  29 CFR 825.109(c).  It should go without saying that the Board should only apply the correct version of the FMLA to the facts at issue.    

Comment:  Attorneys and others with appeals containing FMLA claims before the MSPB will  need to school the judges on which version of the FMLA applies to the facts at issue so that your client's FMLA rights are protected from errant decisions based on FMLA standards that don't apply to your case.  The MSPB badly needs some remedial FMLA training.     

Can an Eligible Employee Take Leave on an Intermittent or Reduced Leave Schedule Basis to Care for a Spouse?

Not according to the Department of Labor.  When it comes to the ability of an employee to take leave on an intermittent or reduced leave schedule basis, it appears that the DOL forgot to include spouses. 

By statute, the FMLA permits an eligible employee to take leave intermittently or on a reduced leave schedule basis in order to care for a spouse, son, daughter, or parent with a serious health condition.  29 USC 2612(b)(1). 

The new DOL regulations, however, say something a bit different.  According to Section 825.202(b)(1), intermittent leave (what happened to a reduced leave schedule?) may be taken for a serious health condition of a parent, son, or daughter, or for the employee's own serious health condition...which requires treatment periodically, rather than for on continuous period of absence..."  No spouse.

Similarly, Section 825.202(b)(1) provides that intermittent leave or leave on a reduced leave schedule (nice of you to show up) taken because of one's own serious health condition, or to care for a -- wait for it-- parent, son, or daughter with a serious health condition...there must be a medical need for the leave... 

Again, spouse is not included as a covered family member for purposes of serious health condition intermittent or reduced schedule leave.

The last sentence of Section 825.202(b indicates that medical necessity includes leave to provide care or psychological comfort to a covered family member with a serious health condition.  This might be evidence that spouse is covered.  The counter argument would be that "covered family member" appears later in the same paragraph that limits the coverage to employee, parent, son, or child, and, therefore, it means only those family members and not spouse.  The same argument would apply to the generic reference to "family member" in 825.202(b)(2). 

Comment:    Title I Employers' would be well-advised to follow the statute and allow eligible employees to take leave on an intermittent or reduced leave schedule to care for a spouse with a serious health condition, all other conditions being met.

I suggest that the DOL at least issue an advisory opinion clarifying the issue.  

The regulation does not apply to federal employers and employees covered by Title II.

Back to the Future: Legislation Introduced to Repeal the NEW DOL FMLA Regulations

On April 29, 2009, Congresswomen Carol Shea-Porter (D-NH), along with 24 cosponsors, introduced H.R. 2161, entitled: To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act.  Representative Shea-Porter explained that the purpose of H.R. 2132 was to "restore the Family and Medical Leave Act to its original intent and spirit."

The legislation seeks to repeal and restore 825.205(a)(2), 825.207, 825.215, 825.220(d), 825.302, 825.303, 825.307, and 825.312.  It also seeks to modify 825.308(b), 825.115(a) & (c), and to revise the medical certification form. 

A review of the proposed repeal of the new and restoration of the old follows.

As proposed, the legislation seeks to repeal the following recently revised FMLA regulations and restore the former regulation/standard.  

• 825.205(a)(2) Increments of FMLA leave for intermittent or reduced schedule leave 

The legislation would rescind all recent changes made to this section. The changes that would be eliminated include an employer's right to designate the entire period an employee is unavailable to work as FMLA leave where physical impossibility prevents the employee from intermittent leave or working a reduced leave schedule from commencing work mid-way through a shift (i.e., railroad conductor needs intermittent leave during middle of a train trip for scheduled medical treatment). 

The plus side for the employee is that only the period the employee needs intermittent leave counts against their 12-week entitlement.  The downside is the the rest of the time the employee can't do his or her job is not covered by the FMLA and, therefore, may be the subject of discipline.  That would not happen under the new DOL regulations. 

• 825.207 Substitution of Paid Leave

Reversion of the old regulations would provide some benefits to the employee.  It would also create problems. 

For example, on the plus employee side, return to the old regulations would prohibit an employer from imposing any of its normal leave policy requirements (notice, documentation) on employees where vacation or personal leave is substituted for FMLA leave.  In this respect, the old regulation treats employees who use FMLA leave better than employees who do not use FMLA leave. 

The revised regulation also added language defining "substitution" to mean that unpaid FMLA leave runs concurrent with available paid leave.  The DOL added this language because there are federal circuit court cases out there that have held that "substitution" means what it says- in place of. That is, the leave is no longer protected by the FMLA and may be subject to discipline.  Given the split in the case law interpreting the old regulation, getting rid of the definition of "substitution" does not sound like a big win for employees.  Stated differently, how is the "original intent" of the legislation enhanced by the absence of a definition of "substitution?" 

The new DOL regulation also allows public employees to substitute compensatory time for unpaid FMLA leave, a move supported by many employee groups. Under the Shea-Porter legislation, gone. 

• 825.215 Equivalent Position

Reversion would reinstate the former rule that prohibited employers from denying bonuses to employees who did not satisfy the requirements for a bonus due to FMLA leave usage.  As modified, the DOL altered the language to deny bonuses to employees who did not meet a specified goal or perfect attendance due to FMLA leave usage, unless the employer pays a bonus to employees who take, for example, non-FMLA leave.   

Obviously, going back would benefit employees who take FMLA leave.  However, it recreates the situation that motivated the DOL to change the regulation in the first place: the frustration of employees and employers of giving perfect attendance awards to employees who have been absent for extended periods of time because of FMLA usage while denying awards to employees who have been absent for non-FMLA purposes.   

825.220(d) Light Duty & Waiver of Employee FMLA Rights

The DOL modified the language of 825.220(d) to confirm that an employee who elects to work a light duty schedule cannot have the time they worked count against their FMLA leave entitlement.  The DOL took this action to address decisions by two federal district courts interpreting the former rule to mean that an employee uses up their 12-week FMLA leave entitlement while performing light duty work. How this his helpful to employees is unclear.  

Repeal of the current rule allowing employees to settle FMLA claims based on past conduct would necessarily return the situation to the split between the Fourth And Fifth Circuits on waiver of FMLA rights.  In the Fourth Circuit, an employee cannot settle an FMLA case without the involvement of a court or the DOL.  Note that the statute does not say that only settlments supervised by the DOL or approved by a court are valid. 

Whether you favor the Fourth Circuit's approach really depends on how accepting of paternalism you are.  

• 825.302 Employee Notice of Foreseeable Leave

The new regulations deleted language defining "as soon as practicable" as ordinarily meaning one or two business days.  DOL deleted the language as confusing.  Some employees and employee organizations misinterpreted the language as allowing an employee to provide notice of the need for leave within one or two business days regardless of whether it was practicable for the employee to provide notice sooner.  Courts have not been confused.  The old and new language basically say the same thing in different ways- employees must notify the employer of the need for leave as soon as practicable, which might be immediately depending on the facts.  

Repeal would eliminate the requirement that an employee must explain why they did not provide timely notice of the need for leave that was foreseeable at least 30 days in advance.  

825.302 applies the foreseeable need notice provisions to military caregiver leave.  The old regulations do not address military caregiver leave.  Arguably, repeal of 825.302 would eliminate all military caregiver leave notice requirements.  It is unclear how this is helpful to anyone.

Reversion to the former foreseeable notice rules would also eliminate the new rules governing employee notice of the need for qualifying exigency leave.  Again, how this is helpful is any ones guess.   

• 825.303 Employee Notice of Unforeseeable Leave

The legislation would restore language that notice "as soon as practicable" generally means within one or two business days.  DOL deleted the "two-day" rule as confusing.  Some employees wrongly believed that they always had two business days to notify the employer of the need for the leave even if it was practicable for the employee to provide notice sooner.  Actually, that has never been the rule. 

I don't believe that restoration of the old rule is any more reflective of the original intent or spirit of the legislation than the current rule. Both say the same thing, just in different ways.  I happen to think the current version states the "as soon as practicable" requirement more clearly than the former version.     

The legislation would also repeal the requirement that an employee provide notice of the need for leave that is unforeseeable within the time frame prescribed by the employer's usual and customary notice requirements applicable to such leave.  

Repeal would do away with new language indicating that an employee's stating they are "sick" is not adequate notice that the employee needs FMLA-qualifying leave.  Given that this requirement basically codifies what the overwhelming majority of courts have held, it is unclear how deletion of this language returns the situation to the original intent and spirit of the law.

Similarly, as revised, the regulation currently provides examples of the type of information an employee may include in order to adequately inform the employer that leave may be FMLA-qualifying.  Given that the adequacy of employee notice is one of the most heavily litigated FMLA issues, it is unclear to me why you would want to repeal some good advice on what an employee should consider including in their request for leave to ensure that the employer realizes that the leave is FMLA-qualifying.  How does greater ambiguity on what information an employee should include in a request for leave constitute a return to the original intent and spirit of the law?

The legislation would do away with the newly added requirement that an employee must specifically reference either the qualifying reason for leave or the need for FMLA leave where the employee seeks FMLA leave due to a qualifying reason for which the employer has previously approved FMLA leave.  The standard codifies existing case law requiring an employee to link their current request for leave to a prior, FMLA-approved condition.  Again, what is gained by getting rid of a regulation that codifies the majority interpretation of the old regulation?    

• 825.307 Authentication and Clarification of Medical Certification

Under the new regulation, an employer may contact a health care provider directly to confirm that the certification provided by the employee is real, and to clarify the content of the certification. 

Employee organizations hated this rule.  Repeal would reinstate the former regimen wherein an employer must ask the employee's permission before contacting the health care provider, through another health care provider, to confirm the authenticity or clarify the content of the certification.  Asking the employee for permission to determine if the certification is a fraud never made much sense to me. 

• 825.312 Fitness for duty certification

Under the old rule, an employer could only require an employee to provide a "simple statement" that the employee was able to return to work. 

Under the new regulations, an employer could require the fitness for duty certification address the employee's ability to preform the essential functions of the employee's job as long as the employer provided the employee with a list of the essential functions of the job at the time of the designation notice.

The new rule also allows employers to contact the employee's health care provider directly without the employee's permission to confirm authenticity and to clarify the content of fitness-for-duty certification. 

The new rule allows employers to require fitness-for-duty certifications for employees using intermittent leave for their own serious health condition when reasonable safety concerns are present. 

Repeal of the new rules would certainly lighten the fitness-for-duty burden on employees.

Proposed Revisions

• 825.115(a) and (c) Incapacity and Treatment Serious Health Condition

The DOL proposes to dramatically change how incapacity plus treatment and chronic serious health conditions are defined. Specifically, the DOL proposes to remove the requirement or a specific number of periodic visits for treatment by a health care provider and to require only the treatment that the health care provider determines proper.

For incapacity plus treatment, the change effectively does away with a period of incapacity of more than three full consecutive calendar days that also involves two health care provider treatments within specified time frames.  For a chronic serious health condition, the change would remove the newly installed definition of periodic treatment as at least 2x a year.

825.308(b) Recertification

Basically, the revision would extend the period an employer may require a recertification from every six months to once a year, provided the original certification indicated that the condition would last more than a year.  Otherwise, if the condition was originallyly certified to last for a period of less than a year, the employer has to wait the length of time that the original certification indicated the condition would last.  This would undoubtedly ease the financial and hassle of more frequent recertifications somewhat on employees.   

Comment:  The legislation is no doubt a sincere attempt to right what many employee organizations sincerely believe was a last minute move by the Bush administration to undermine employee FMLA rights.  In my opinion, it simply goes too far. 

FMLA Camelot did not exist prior to January 16, 2009.  The original regulations had many problems.  Over the years, courts found several of the regulations to be invalid.  Courts interpreted other regulations in unique ways that were not always beneficial to employees.  The sheer volume of litigation on certain issues, like the adequacy of employee notice of the need for FMLA leave, should tell any reasonable person that the existing employee notice provisions were less than ideal.  

Familiarity is not the same thing as better.  The organization of the new rules by broad subject matter is better than the old rules.  Updating the rules to reflect the current state of the law does not undermine the original intent and spirit of the rule.  Adding examples to illustrate the operation of a rule is not a bad thing.  Repealing regulations that include guidance on the new military caregiver and qualifying exigency leave so that no guidance is given to employers and employees is simply ridiculous. 

Employee groups undoubtedly have some legitimate beefs that some of the new regulations are overly employer-friendly.  The political climate has changed so these groups are in a better position to do something about it.  These groups might consider using a scalpel rather than this dull meat cleaver legislation.    

On April 29, 2009, Congresswomen Carol Shea-Porter (D-NH), along with 24 cosponsors, introduced H.R. 2161, entitled: To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act.  Representative Shea-Porter explained that the purpose of H.R. 2132 was to "restore the Family and Medical Leave Act to its original intent and spirit."

The legislation seeks to repeal and restore 825.205(a)(2), 825.207, 825.215, 825.220(d), 825.302, 825.303, 825.307, and 825.312.  It also seeks to modify 825.308(b), 825.115(a) & (c), and to revise the medical certification form. 

A review of the proposed repeal of the new and restoration of the old follows.

As proposed, the legislation seeks to repeal the following recently revised FMLA regulations and restore the former regulation/standard.  

• 825.205(a)(2) Increments of FMLA leave for intermittent or reduced schedule leave 

The legislation would rescind all recent changes made to this section. The changes that would be eliminated include an employer's right to designate the entire period an employee is unavailable to work as FMLA leave where physical impossibility prevents the employee from intermittent leave or working a reduced leave schedule from commencing work mid-way through a shift (i.e., railroad conductor needs intermittent leave during middle of a train trip for scheduled medical treatment). 

The plus side for the employee is that only the period the employee needs intermittent leave counts against their 12-week entitlement.  The downside is the the rest of the time the employee can't do his or her job is not covered by the FMLA and, therefore, may be the subject of discipline.  That would not happen under the new DOL regulations. 

• 825.207 Substitution of Paid Leave

Reversion of the old regulations would provide some benefits to the employee.  It would also create problems. 

For example, on the plus employee side, return to the old regulations would prohibit an employer from imposing any of its normal leave policy requirements (notice, documentation) on employees where vacation or personal leave is substituted for FMLA leave.  In this respect, the old regulation treats employees who use FMLA leave better than employees who do not use FMLA leave. 

The revised regulation also added language defining "substitution" to mean that unpaid FMLA leave runs concurrent with available paid leave.  The DOL added this language because there are federal circuit court cases out there that have held that "substitution" means what it says- in place of. That is, the leave is no longer protected by the FMLA and may be subject to discipline.  Given the split in the case law interpreting the old regulation, getting rid of the definition of "substitution" does not sound like a big win for employees.  Stated differently, how is the "original intent" of the legislation enhanced by the absence of a definition of "substitution?" 

The new DOL regulation also allows public employees to substitute compensatory time for unpaid FMLA leave, a move supported by many employee groups. Under the Shea-Porter legislation, gone. 

• 825.215 Equivalent Position

Reversion would reinstate the former rule that prohibited employers from denying bonuses to employees who did not satisfy the requirements for a bonus due to FMLA leave usage.  As modified, the DOL altered the language to deny bonuses to employees who did not meet a specified goal or perfect attendance due to FMLA leave usage, unless the employer pays a bonus to employees who take, for example, non-FMLA leave.   

Obviously, going back would benefit employees who take FMLA leave.  However, it recreates the situation that motivated the DOL to change the regulation in the first place: the frustration of employees and employers of giving perfect attendance awards to employees who have been absent for extended periods of time because of FMLA usage while denying awards to employees who have been absent for non-FMLA purposes.   

825.220(d) Light Duty & Waiver of Employee FMLA Rights

The DOL modified the language of 825.220(d) to confirm that an employee who elects to work a light duty schedule cannot have the time they worked count against their FMLA leave entitlement.  The DOL took this action to address decisions by two federal district courts interpreting the former rule to mean that an employee uses up their 12-week FMLA leave entitlement while performing light duty work. How this his helpful to employees is unclear.  

Repeal of the current rule allowing employees to settle FMLA claims based on past conduct would necessarily return the situation to the split between the Fourth And Fifth Circuits on waiver of FMLA rights.  In the Fourth Circuit, an employee cannot settle an FMLA case without the involvement of a court or the DOL.  Note that the statute does not say that only settlments supervised by the DOL or approved by a court are valid. 

Whether you favor the Fourth Circuit's approach really depends on how accepting of paternalism you are.  

• 825.302 Employee Notice of Foreseeable Leave

The new regulations deleted language defining "as soon as practicable" as ordinarily meaning one or two business days.  DOL deleted the language as confusing.  Some employees and employee organizations misinterpreted the language as allowing an employee to provide notice of the need for leave within one or two business days regardless of whether it was practicable for the employee to provide notice sooner.  Courts have not been confused.  The old and new language basically say the same thing in different ways- employees must notify the employer of the need for leave as soon as practicable, which might be immediately depending on the facts.  

Repeal would eliminate the requirement that an employee must explain why they did not provide timely notice of the need for leave that was foreseeable at least 30 days in advance.  

825.302 applies the foreseeable need notice provisions to military caregiver leave.  The old regulations do not address military caregiver leave.  Arguably, repeal of 825.302 would eliminate all military caregiver leave notice requirements.  It is unclear how this is helpful to anyone.

Reversion to the former foreseeable notice rules would also eliminate the new rules governing employee notice of the need for qualifying exigency leave.  Again, how this is helpful is any ones guess.   

• 825.303 Employee Notice of Unforeseeable Leave

The legislation would restore language that notice "as soon as practicable" generally means within one or two business days.  DOL deleted the "two-day" rule as confusing.  Some employees wrongly believed that they always had two business days to notify the employer of the need for the leave even if it was practicable for the employee to provide notice sooner.  Actually, that has never been the rule. 

I don't believe that restoration of the old rule is any more reflective of the original intent or spirit of the legislation than the current rule. Both say the same thing, just in different ways.  I happen to think the current version states the "as soon as practicable" requirement more clearly than the former version.     

The legislation would also repeal the requirement that an employee provide notice of the need for leave that is unforeseeable within the time frame prescribed by the employer's usual and customary notice requirements applicable to such leave.  

Repeal would do away with new language indicating that an employee's stating they are "sick" is not adequate notice that the employee needs FMLA-qualifying leave.  Given that this requirement basically codifies what the overwhelming majority of courts have held, it is unclear how deletion of this language returns the situation to the original intent and spirit of the law.

Similarly, as revised, the regulation currently provides examples of the type of information an employee may include in order to adequately inform the employer that leave may be FMLA-qualifying.  Given that the adequacy of employee notice is one of the most heavily litigated FMLA issues, it is unclear to me why you would want to repeal some good advice on what an employee should consider including in their request for leave to ensure that the employer realizes that the leave is FMLA-qualifying.  How does greater ambiguity on what information an employee should include in a request for leave constitute a return to the original intent and spirit of the law?

The legislation would do away with the newly added requirement that an employee must specifically reference either the qualifying reason for leave or the need for FMLA leave where the employee seeks FMLA leave due to a qualifying reason for which the employer has previously approved FMLA leave.  The standard codifies existing case law requiring an employee to link their current request for leave to a prior, FMLA-approved condition.  Again, what is gained by getting rid of a regulation that codifies the majority interpretation of the old regulation?    

• 825.307 Authentication and Clarification of Medical Certification

Under the new regulation, an employer may contact a health care provider directly to confirm that the certification provided by the employee is real, and to clarify the content of the certification. 

Employee organizations hated this rule.  Repeal would reinstate the former regimen wherein an employer must ask the employee's permission before contacting the health care provider, through another health care provider, to confirm the authenticity or clarify the content of the certification.  Asking the employee for permission to determine if the certification is a fraud never made much sense to me. 

• 825.312 Fitness for duty certification

Under the old rule, an employer could only require an employee to provide a "simple statement" that the employee was able to return to work. 

Under the new regulations, an employer could require the fitness for duty certification address the employee's ability to preform the essential functions of the employee's job as long as the employer provided the employee with a list of the essential functions of the job at the time of the designation notice.

The new rule also allows employers to contact the employee's health care provider directly without the employee's permission to confirm authenticity and to clarify the content of fitness-for-duty certification. 

The new rule allows employers to require fitness-for-duty certifications for employees using intermittent leave for their own serious health condition when reasonable safety concerns are present. 

Repeal of the new rules would certainly lighten the fitness-for-duty burden on employees.

Proposed Revisions

• 825.115(a) and (c) Incapacity and Treatment Serious Health Condition

The DOL proposes to dramatically change how incapacity plus treatment and chronic serious health conditions are defined. Specifically, the DOL proposes to remove the requirement or a specific number of periodic visits for treatment by a health care provider and to require only the treatment that the health care provider determines proper.

For incapacity plus treatment, the change effectively does away with a period of incapacity of more than three full consecutive calendar days that also involves two health care provider treatments within specified time frames.  For a chronic serious health condition, the change would remove the newly installed definition of periodic treatment as at least 2x a year.

825.308(b) Recertification

Basically, the revision would extend the period an employer may require a recertification from every six months to once a year, provided the original certification indicated that the condition would last more than a year.  Otherwise, if the condition was originallyly certified to last for a period of less than a year, the employer has to wait the length of time that the original certification indicated the condition would last.  This would undoubtedly ease the financial and hassle of more frequent recertifications somewhat on employees.   

Comment:  The legislation is no doubt a sincere attempt to right what many employee organizations sincerely believe was a last minute move by the Bush administration to undermine employee FMLA rights.  In my opinion, it simply goes too far. 

FMLA Camelot did not exist prior to January 16, 2009.  The original regulations had many problems.  Over the years, courts found several of the regulations to be invalid.  Courts interpreted other regulations in unique ways that were not always beneficial to employees.  The sheer volume of litigation on certain issues, like the adequacy of employee notice of the need for FMLA leave, should tell any reasonable person that the existing employee notice provisions were less than ideal.  

Familiarity is not the same thing as better.  The organization of the new rules by broad subject matter is better than the old rules.  Updating the rules to reflect the current state of the law does not undermine the original intent and spirit of the rule.  Adding examples to illustrate the operation of a rule is not a bad thing.  Repealing regulations that include guidance on the new military caregiver and qualifying exigency leave so that no guidance is given to employers and employees is simply ridiculous. 

Employee groups undoubtedly have some legitimate beefs that some of the new regulations are overly employer-friendly.  The political climate has changed so these groups are in a better position to do something about it.  These groups might consider using a scalpel rather than this dull meat cleaver legislation.    

Treatment During House Calls by a Health Care Provider Are Not Covered by the FMLA, Sixth Circuit Finds

Robin Morris was terminated from his position as store manager for Family Dollar following his return from a week of approved leave to visit his mother.  During his visit, his mother underwent an outpatient needle biopsy of a lump in her left breast.  Immediately following the biopsy, the mother was hospitalized.  On her release from the hospital the mother was bedridden for at least four consecutive days. During this time the mother complained of headaches, stomach problems, dizziness form the anesthesia administered during her biopsy, and pain and discomfort in her breast.  The mother testified that Morris "had to take care of her every day needs" during this period.  Morris testified that, post-biopsy, his mother needed help getting in and out of the shower and with household chores, that she had trouble walking. When asked during deposition whether he considered his mother to be incapacitated, he said "no."  Follow-up visit with her doctor 10 days after the biopsy the mother confirmed that the lump was benign.

Denial of FMLA Leave for Submission of Altered Medical Certification Appropriate Even if Employee Might Otherwise Be Entitled to Leave

Tanum Smith worked as an instructional aide for Hope School, a residential facility for children with development disabilities.  She suffered injuries as a result of two physical altercations with students.  Thereafter, she became apprehensive about working with students.  Her primary physician, Dr. Vasconcelles, provided a note restricting her to light duty and assignments that did not require her to be around Hope School residents.  The School transferred Smith into a different department that did not work directly with students.   As a result of a student approaching her in her new position, Smith left work citing fears for her safety.  Smith was subsequent provided medical certification forms in the event she wanted FMLA leave to cover her absence.  She provided the forms to Dr. Vasconcelles.

Smith picked up the FMLA paperwork from Vasconcelles' office.  The paperwork supported her request for FMLA leave.  After securing the FMLA paperwork, Smith altered the medical certification in several ways.  She added to the the narrative description of her condition "plus previous depression."  Vasconcelles nor any other doctor had diagnosed or treated Smith for depression.  Smith also backdated for the FMLA form several days.  She also filled out a separate "Attending Physician's Statement" in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression." 

Smith provided the form to Hope School.  The School subsequently confirmed its suspicion that the form had been materially altered.  The School denied Smith's request for FMLA leave and terminated her for incurring unexcused absences in violation of School policy. She was not fired for altering the FMLA form.

Smith sued alleging that her termination violated the FMLA.  The district court awarded summary judgment to the School.  The lower court found that Smith's alteration of the Vasconcelles' health care provider certification form invalidated her application for leave under the FMLA.  As such, the School did not interfere with her FMLA rights or retaliate against her for asserting them.  Smith appealed the decision.

The Seventh Circuit affirmed the award of summary judgment to the School.  The court rejected Smith's argument that the School was bound to read the false conditions out of the certification before determining whether the true medical condition supported her request for FMLA leave.  The court opined that Smith's proposed rule would "have the effect of encouraging applicants to dress up an application for leave by adding non-existent conditions."  The court held that "where an employee adds to a medical care provider's certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave."   

Comment:  In the usual case, the employer fires the employee for dishonesty for submitting a false medical certification.  Here, the School terminated Smith for taking leave to which she was not entitled, not falsification. The court found that by altering the FMLA medical certification Smith failed to provide an adequate medical certification in support of her request for FMLA leave.  She did not establish that she had a serious health condition.  As a result, her leave was both unprotected by the FMLA and unexcused. 

The court also rejected Smith's argument that she did not intend to obtain leave by fraud but was merely trying to be thorough.  According to the court, "[w]here multiple forms purporting to contain a physician's diagnosis were in fact altered or filed out completely by a patient who knew that the physician has made no such diagnosis, we concluded that Smith was presenting false certification paperwork and thus wa not entitled to FMLA leave."

The lesson for employee's: DO NOT EVER add or modify anything to the health care provider's information on the FMLA medical certification.  If you do not think the information is complete bring it to the attention of the health care provider.  Let them modify the form.  If they refuse to modify the form, either live with it or get another health care provider.

Smith v. The Hope School, No. 08-2176, 2009 U.s. App. LEXIS 6985 (7th Cir. March 30, 2009)

Legislation Introduced to Provide Paid Family Leave for Federal Workers

Bills expanding the Family and Medical Leave rights of federal employees were recently introduced into the House and Senate since the inauguration of President Obama.  

In the House, Representative Carol Maloney (D-NY), with 46 cosponsors, introduced the Federal Employees Paid Parental Leave Act of 2009 (H.R. 626).  The legislation would provide eligible federal employees with up to 4 weeks of paid parental leave to care for a newborn or newly adopted/foster care placed son or daughter.  The 4 weeks is paid by the agency.  It is not deducted from the employee's annual leave balance.  The legislation would apply to civil service employees, employees of Congress, and employees of the GAO and Library of Congress.  The legislation was recently approved by the House Oversight and Government Reform's Subcommittee on he Federal Workforce, Postal Service, and District of Congress.  Senator Jim Webb (D-VA), with  14 cosponsors), introduced nearly identical legislation in the Senate (S. 354).

On a related note, Representative Maloney, with 11 cosponsors, also introduced the Family and Medical Leave Enhancement Act of 2009 (H.R. 824).  The bill would amend Titles I and II of the FMLA to allow federal civil service and non-civil service employees to take up to 4 hours a month, up to a total of 24 hours a year of leave for two purposes: (1) to participate in or attend a school or community sponsored activity of a son, daughter, or grand child;or (2) to meet routine family medical care needs, including routine medical and dental appointments of a son, daughter, spouse, grandchild, or elderly relative. 

Note the expansion of the FMLA to cover more family members: grandchildren, grandparents, and elderly, dependent relatives.

As a candidate, President Obama supported the type of expansion of the FMLA addressed in H.R. 824.  Although not directly addressing paid family leave for federal workers, Candidate Obama did support  the expansion of paid FMLA leave by the states.       

In my humble opinion, federal employees will likely see their FMLA rights expanded sooner rather than later under the Obama administration.  Stay tuned!

Federal Court Applies Wrong FMLA Standard to Federal Civil Service Employee

In Cole v. Powell, No. 07-1829 (RJL), 2009 U.S. Dist. LEXIS 22087 (D.D.C. March 19, 2009), the court dismissed the employee's FMLA claims as lacking in merit.  In that case, Janie Cole was employed in the federal civil service as a GS-9 staffing assistant by the National Gallery of Art.  Pursuant to an EEO settlement, Cole would be promoted to a GS-11 position after 90 days if she demonstrated improved and sustained dependability regarding attendance, including the advance scheduling of leave.  Cole had to schedule leave 24 hours in advance and provide documentation justifying any unscheduled leave. 

Cole incurred three unscheduled absences during the 90-day period.  As a result, the Gallery denied Cole the promotion. Cole sued, alleging that the settlement agreement was unenforceable because it violated the FMLA.  Specifically, she alleged that the 24-hour notice and medical documentation requirements violated the FMLA.  The court disagreed.  Relying on 29 CFR 825.303(a) and 29 USC 2613, the court found that the 24-hour advance notice and medical documentation requirements were permitted by the FMLA.  As such, the court concluded that Cole had failed to demonstrate that the settlement agreement interfered with her FMLA rights.

Comment:  The decision reaches the correct result for the wrong reason.  Federal civil service employees are covered by Title II of the FMLA (the OPM regulations), not Title I (the DOL FMLA regulations).  The court's reliance on Title I (29 USC 2613) and the DOL FMLA regulations (29 CFR 825.303(a)) was incorrect.  The court should have simply dismissed the case for failure to state a claim because federal civil service employees, unlike their Title I counterparts, do not have the right to file a federal civil suit to enforce their Title II FMLA rights.