The FMLA Blog

DOL Proposes New FMLA Military Family Leave Rules and Solicits Public Comment

On January 30, 2012, the U.S. Department of Labor (DOL) released proposed rules for public comment to implement statutory changes resulting from the National Defense Authorization Act of 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The proposed rules also clarify the meaning of, and make changes to, existing military family leave regulations. They also propose changes to the FMLA regulations generally. 

Military Family Leave

As addressed in previous posts, the FMLA was amended by the FY 2008 and FY 2010 NDAA's to add two new categories of FMLA leave: qualifing exigency leave and militlary care giver leave.  Both categories allow eligible employees of covered employers to take FMLA leave casually releated to the military service of a covered family member. 

Qualifying Exigency (QE) Leave

QE leave allows an eligible employee of a covered employer to take up to 12 workweeks of FMLA leave during a 12-month leave year because of a qualifying exigency arising out of the military service of a covered family member, including short-notice deployment, military events, child care & school activities, financial & legal arrangements, non-medical counseling, rest & recuperation, post-deployment activities, and other mutually agreed upon activities related to the family members military service.  

As originally codified, QE leave was limited to military service in the Reserves and National Guard. Thus, an eligible employee could not take QE leave related to the deployment of a family member serving in the Regular Armed Forces.  The FY 2010 NDAA amended the FMLA to allow eligible employees to take QE leave to for family members serving in the Regular Armed Forces (Army, Navy, Matines, Air Force) provided military service was to a foreign country.  The rules proposed by the DOL update the regulations to reflect the changes resulting from enactment of the FY 2010 NDAA.  The rules also propose to clarify and modify existing QE regulations.  For example-

• QE leave is only available where a covered family member of the Regular Armed Forces or Reserves is deployed to a foreign country.  Prior to FY 2010 NDAA, foreign deployment was not required for QE leave due to call or active duty of a member of the Reserves. 
• The proposal defines "foreign deployment" to include deployment in international waters.
• Clarifies that QE leave is availble for an eligible employee for child care and school activities even if the employee is not the parent of the child of the deployed military member.
• Expands Rest and Recuperation leave from 5 to 15 days during a period of deployment as a better match to DOD practice.
• Permits an employer to require the employee to provide a copy of the R & R order to substantiate the need for QE leave for this purpose.
• Adding attendance at furneral services as a post-deployment activiity covered by QE leave.

 Military Caregiver Leave

Military caregiver leave was created as a new FMLA entitlement by the FY 2008 NDAA amendments.  An eligilble employee of a covered employer who is the a covered servicemember's spouse, son, daugher, parent, or next of kin may take up to 26 workweeks of leave duing a "single 12-month period" to care for a service member receiving treatment for a serious illness or injury incurred inthe line of activie duty.  As orginally enacted, military caregiver leave was limited to current members of the Armed Forces, including Guard and Reserves.  The FY 2010 NDAA amendments expanded military caregiver leave to cover leave to care for certain veterans within 5 years of their duscgage or release from the Armed Forces.  It also amended the definition of "serious illness or injury" to include aggravation of preexisting conditions.  The proposed DOL regulations address these statutory changes.

Interesting aspects of the proposal on this issue include-

• Allowing an eligible employee to continue on military caregiver leave that began before the passage of the five-year period until the end of the single 12-month period.
• Newly defines a qualifying "serious injury or illness" for a veteran to include (1) serious illnesses or injuries suffered while the individual was a current servicemember; (2) as a physical or cmental condition for which the covered veteran has received a VA Servife Related Disability Rating of 50 percent or higher; or (3)  a physical or mental condition that substnatially impairs the veteran's aabilty to secure or follow a substantially gainful occupation by reason of a service-connected disabilty, or would do so absent treatment.
• The DOL is considering adding a fourth alternative definition of "serious illness or injury" involving veterans: enrollment in the VA's Program of Comprehensive Assistance for Family Caregivers.
• Proposes allowing medical certifications from non-military "health care providers." 
• Modifies the medical information that an employer may be entitled to receive to support a request for military caregiver leave.

AFCTCA

Enacted on December 21, 2009, the Airline Flight Crew Technical Corrections Act (AFCTCA) established a special minimum hous of service eligibility requirement for airline clight crew employees.  The legislation was enacted to adapt the 1250 hours of service eligibiltyr equirement to the unique schedules of flight crews which, in some jurisdictions, did not count standby and the time between flights as "hours worked."  As a consequence, airline employees were not eligible for FMLA leave even though they were working full-time schedules.  The proposed rule details the special service requirements unique to the airline industry.  

Additional Proposed Changes

The DOL proposes to make several other interesting changes to the existing FMLA regulations, including:

 

• Eliminate a 2009 regulation permitting employers to charge an employee different minimum increments of intermittent leave during different times of the day if that is the employer's practice for non-FMLA leave in favor of requiring the employer to charge the employee the smallest increment of leave.
• Eliminate a 2009 provision allowing employers to delay an employee's return from FMLA leave where it is  physically impossible (e.g., employee works in a locked clean room and seeks to return mid-shift). 
• Removing the optional-use medical certification and other forms from the regulations, although DOL would continue to encourage their use and make the forms available on their website.

Comments to the proposed regulations are due 60 days after publication in the Federal Register (which has not yet occurred, but is imminent).  You may submit comments, identified by Regulatory Information No. (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portal: http://www.regulations.gov.  Follow the instructions for submission. Alternatively, you may submit comments by mail to: Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Rm. S-3510, Constitution Avenue, NW, Washington DC, 20210. 

Comment:  This is your chance to shape the FMLA regulations.  Serious comments are taken seriously by the DOL.  Speak now or forever hold your peace.  

The DOL proposal may be viewed in its entirety at:   http://www.dol.gov/whd/fmla/NPRM/FMLA_NPRM_2012.pdf

Finally, until adopted, the above are just proposals. The current rules and statutory language continue to apply.       

      

New Flash: DOL to Conduct FMLA Study

Labor Secretary Hilda Solis announced yesterday that the U.S. Department of Labor will conduct a study next year of how families use FMLA leave, as well as "information on regulatory changes, among other things." 

Comment: In the past, DOL studies have been a precursor to regulatory changes.  While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments.  Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.  The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me). 

Keep your eye on the ball (er, study) and stay tuned folks!!

Did I Say "And"? I Meant "Or": DOL Reinteprets In Loco Parentis Requirements

On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter.  The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.  Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child.  Under the existing regulation, 29 CFR 825.122(c)(3), an in loco parentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.  In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both.  The DOL's "interpretation" is at direct odds with the plain reading of the regulation.

Comment:  The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentis parent for purposes of FMLA leave.  While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentis parental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or."  My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave. 

The DOL Memorandum is available at http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm

DOL Announces Review of Bush-Era FMLA Regulations

On December 7, 2009, the DOL announced its intention to review the new military family leave amendments to the FMLA included in the FY 2008 National Defense Authorization Act, as well as other revisions of the FMLA made the DOL in November 2009 near the close of Bush presidency.  Labor and employee organizations were highly critical of a number of changes to the existing FMLA regulations.  Those changes, which became effective on January 16, 2009, adopted, in some cases, a more stringent definition of FMLA-covered serious health conditions, allowed employers to collect more information in a medical certification in support of a serious health condition,  and permitted the employer to make direct contact with the employee's health care provider to authenticate or clarify a medical certification. among other changes.

Note that the announcement indicated that, on completion of the review, "regulatory alternatives will be developed for notice-and-comment rulemaking." The use of the affirmative "will" suggests that this is not an idle exercise by the DOL.  The DOL estimated that it would issue a notice-of proposed-rulemaking by November 2010. 

The announcement may be accessed at: http://frwebgate3.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=42978019657+0+1+0&WAISaction=retrieve 

Comment:   Given the ferocity of the criticism made by labor and employee organizations regarding the DOL changes to the existing FMLA regulations, I suspect that changes to the January 2009 FMLA regulatory revisions is a given.  It is not a question of if, but when.   DOL also needs to issue new FMLA rules to implement the recent statutory changes to the FMLA made in the 2009 National Defense Authorization Act.  

The DOL made its announcement in the Unified Agenda.  The Unified Agenda (also known as the Semiannual Regulatory Agenda), published twice a year (usually in April and October) in the Federal Register (FR), summarizes the rules and proposed rules that each Federal agency expects to issue during the next year. It is published by the Office of the Federal Register National Archives and Records Administration (NARA).

DOL Issues Guidance on H1N1 Flu and FMLA

On November 9, 2009 the DOL Wage and Hour Division issued guidance on the availability of FMLA leave where the employee or covered family member is ill with pandemic flu.  In relevant part, the DOL notes that FMLA leave is NOT available to avoid exposure to the flu.  The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza. 

Similarly, the DOL notes that the FMLA does not cover an employee's absence to care for healthy children who have been dismissed from school or child care to prevent the spread of the influenza.  Eligible employee's may take FMLA leave to care for a child who is sick with pandemic flu, but only if the illness rises to the level of a serious health condition as defined by the FMLA. 

The DOL notes that employers may have a plan or policy that allows the employer to send employees home if they show symptoms of pandemic influenza, provided the plan and the employer's decisions comply with all applicable laws, including federal anti-discrimination laws.  

Consistent with the FMLA and ADA, the DOL advises that employers may require an employee who is out sick with pandemic influenza to provide a doctors's note, submit to a medical exam, or remain symptom-free for a specified period of time before returning to work.  Under the FMLA, to do so the employer must have a uniformly-applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work, and the employee must have been notified of the requirement in advance.  The terms of a collective bargaining agreement may also impact an employee's right to return from FMLA leave.

Finally, the DOL cautioned employers that laying off employees who are unable to come to work because they are taking care of sick family members must not discriminate against employee's for exercising FMLA rights.  The DOL suggests that, in lieu of laying off employees, employers consider other options such as telecommuting.  The DOL also suggests that employers prepare a plan of action.

The DOL Q & A is available by clicking on the attached link.   http://www.dol.gov/whd/healthcare/flu_FMLA.pdf

HAPPY THANKSGIVING

Special Alert: New DOL FMLA Regulations to be Published Monday

The U.S. Labor Department announced on Thursday that revised regulations implementing the FMLA will be published in the Federal Register on Monday, November 17, 2008.  The revisions will include regulations implementing the January 28, 2008, military leave amendments to the FMLA.  They will also incorporate changes to the existing FMLA regulations that the DOL proposed in the February 11, 2008 Federal Register.   

The story was reported by Jessie J. Holland of the Associated Press.  http://www.federalnewsradio.com/?nid=78&sid=1517465

Comment:  You can (and should) get the Federal Register version of the FMLA regulations by Goggling to the Federal Register on Monday.  Once there, plug in "family medical leave" as your search term in the current edition of the Federal Register.  The new FMLA regulations should pop up at the top of the search.

Securing the Federal Register version of he regulations is important as the DOL will reveal critical insights into their thinking on the meaning of the regulations. 

DOL Forwards New FMLA Regulations to OMB for Approval

On October 20, 2008, the U.S. Department of Labor forwarded revised FMLA regulations to the Office of Management and Budget for approval.  If approved, the regulations could be issued in the next few weeks.  The White House previously issued a memorandum to all federal agencies setting November 1, 2008, as the deadline for the issuance of any new final regulations.  The White House memo did, however, reserve the right to allow exceptions. 

The scope of the DOL regulations forwarded to OMB is unclear.  The DOL was preparing final regulations to implement the military family leave amendments to the FMLA.  DOL also proposed changes to the existing FMLA regulations in light of case law and statutory developments since the enactment of the original regulations some 15 years ago.     

Stay tuned! 

Thanks to the BLR for the tip.  http://hr.blr.com/news.aspx?id=79032

  

Reminder: Time is Running Out to Submit Your Comments to the DOL Regarding Changes to the FMLA

You have one more week, until April 11, 2008, to submit comments to the DOL regarding: (1) proposed changes to the existing FMLA regulations; and (2) offer suggestions regarding what regulations the DOL should adopt to implement the newly enacted military family leave provisions.

The proposed regulatory changes may be viewed at: http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf

Comments may be sent to the DOL electronically at http://www.regulations.gov

You may also mail comments to:  Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW Washington DC 20210.

The DOL strongly encourages that you submit your comments electronically.

Help shape the FMLA.  Provide your FMLA comments to the DOL.   

 

DOL Issues Proposed Revisions to Existing FMLA Regulations

The U.S. Department of Labor on February 11, 2008 issued proposed revisions to the current FMLA regulations.  As proposed, the 100+ pages of changes delete some regulations, consolidate others, significantly change some provisions, while leaving other core issues virtually untouched.  The end result is that many of the regulations you have come to know and love have been changed, if only renumbered.

I address a few of the changes below.

Eligibility

The DOL proposes to adopt the holding of the First Circuit in Rucker v. Lee Holding, Co. 471 F.3d. 6 (1st Cir. 2006).  In that case, the court held that the time an individual spent as an employee prior to a five-year break in service did not count towards the 12-months of employment eligibility requirement. 

The current FMLA regulations, 825.110(b), provide that the 12 months need not be consecutive.  Some have interpreted this to mean that all prior employment counts towards the 12 months of employment for FMLA eligibility purposes. 

The DOL also proposed two exceptions to the five-year break in service rule: (1) where the break in service is due to an employee's fulfillment of military obligations; and (2) where the employee is on an approved absence or unpaid leave pursuant to a written agreement expressing the employer's intent to rehire the employee.   

Serious Health Condition

The DOL has reorganized the structure and language of the current definition of a serious health condition:

• The DOL declined to identify minor illnesses that would never constitute an FMLA-covered serious health condition.
• Where leave involves more than three consecutive days incapacity plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity, with two exceptions.  The proposal ends the current open-ended period for an employee to receive medical treatment.
• To constitute a chronic condition, the DOL proposes that "periodic treatment" requires treatment two or more times a year. Currently, "periodic" is not defined by the regulations.
• Leave for treatment for pregnancy, adoption/foster care, and substance abuse are each given their own separate regulations. 

Health care providers

The DOL proposes to add Physician Assistants to the list of recognized health care providers without limitation.

Amount of Leave

Whether a holiday occurring during an employee's FMLA leave counts against the employee's FMLA entitlement will depend on the duration of the employee's leave under the DOL's proposed revision to 825.200. 

If the employee needs leave for the entire week in which a holiday falls, the hours the employee does not work on the holiday count against the employee's FMLA entitlement.  If, however, the employee works a part of the week that a holiday falls, the hours the employee did not work on the holiday do not count against the employee's FMLA leave entitlement if the employee would not otherwise have been required to work on that day.

Intermittent Leave

The DOL proposes to clarify that an employee who takes intermittent leave when medically necessary has a statutory obligation to make a "reasonable effort," as opposed to an "attempt," to schedule leave so as not to disrupt unduly the employer's schedule.

The DOL declined to alter the requirement that employers provide intermittent leave in the smallest increment of time the employee uses to record time, which could be a minute or less.

Paid Leave Substitution

The DOL proposes two substantive changes to the current regulations regarding paid leave:

• The DOL clarifies that "substitute" means to run available paid leave concurrently with unpaid FMLA leave.  Some courts have interpreted "substitute" to mean in place of, so that the paid leave lost the protections of the FMLA.
• DOL did away with the distinction between paid medical/sick leave and vacation/personal leave in terms of an employer's ability to enforce their normal rules regarding the use of that type of leave.  As proposed, an employee must abide by an employer's paid leave policies in order to substitute any form of accrued paid leave for unpaid FMLA leave.

Return to Work & Bonuses

The DOL proposes to drop the distinction in 825.215 between bonuses for job performance and bonuses predicated on the absence of occurrences (e.g., perfect attendance). In its place, the DOL proposes language that provides that an employee who has not met a specified goal due to FMLA leave may be denied the bonus provided similarly situated employees who took non-FMLA leave were also denied the bonus.

Notice Requirements

The DOL proposed consolidating all employee and employer notice requirements into one section.

Employers may satisfy the FMLA poster requirement by electronic posting on the employer's site provided some conditions are met.  The civil penalty for failure to post is increased to $110 for willful violations.  The DOL has revised its prototype poster.

The time an employer has to notify an employee that it has designated leave as FMLA-qualifying is increased from two to five business days under the DOL's proposal. 

Employees who fail to give at least 30 days advance notice of the need for foreseeable leave may be required to explain why it was not practicable to give 30 days' notice.

Absent emergency situations, the DOL proposes modifying the existing regulations to make it clear that it expects that it will be practicable for an employee to provide notice of the need for foreseeable leave either the same day or the next business day.

Where the need for leave is unforeseen, the DOL proposes to modify the regulations to reflect its expectation that in all but the most extraordinary circumstances, employees will be able to provide notice to their employers of the need for leave at least prior to the start of their shift. 

To provide sufficient notice that the leave may be FMLA qualifying, although the employee does not have to mention the FMLA by name, he or she must indicate that the employee is unable to perform the functions of the job, or that a covered family member is unable to participate in regular daily activities, the anticipated duration of the absence, and whether the employee or family member intends to visit a health care provider or is receiving continuing treatment.

Absent unusual circumstances, employee's generally will be required to abide by established call-in procedures for leave, unless the employer's policies allow less time to request leave than the FMLA permits.   

Medical Certification

The DOL proposed changes to the WH 380 to require more information.

Employers would no longer have to gain the employee's consent to contact the health care provider to authenticate the medical certification.

Employer would, however, still have to gain the permission of the employee prior to contacting the employee's health care provider to clarify the content of the medical certification.  The DOL proposes to add language that an employee who refuses such permission may lose jeopardize his or her FMLA rights.

The proposal allows an employer to contact the employee's health care provider directly without having to use a health care provider as an intermediary. 

Military Family Leave  

The DOL has not issued proposed regulations to implement the new military family leave provisions. Those regulations are expected to be published in the next week or two.

Tell DOL What You Think

DOL wants to hear from you regarding their proposed revisions to the current FMLA regulations.  You have until April 11, 2008 to send your comments to the DOL.  Directions to submit comments is set forth on the attached link: http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf  The link provides you with access to the text of the proposed regulations. 

Given that this is a Presidential election year, I expect that the proposed regulations, as well as the new military family leave regulations when they come out, will be the subject of considerable political attention by Congress and the Presidential hopefuls.  Stay tuned!

DOL Proposes Changes to FMLA Regulations

On Thursday, the U.S. Department of Labor announced that it had submitted the first proposed changes to the FMLA regulations in a decade to the White House Office of Management and Budget for approval.  The DOL declined to discuss the proposed changes pending White House review and approval.   

The proposed changes are likely going to address court decisions invalidating a number of DOL FMLA regulations.  As explained in a December 21, 2007 post, the DOL announced on December 10, 2007, its intention to issue proposed FMLA regulations in January 2008. The primary focus of the proposed regulations is intended to address the Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. 535 U.S. 81 (2002).  There, the Supreme Court found invalid the penalty imposed by 29 CFR 825.700(a) for an employer's failure to timely notify an employee that it designated leave as FMLA qualifying absent evidence of actual prejudice to the employee.  The penalty is that the leave taken does not count against the employee's 12 week entitlement. This could result in the employee receiving more than 12 weeks of FMLA leave in a year. 

The DOL announced that it "intends to propose revisions to address issues raised by this and other judicial decisions." 

For an excellent, albeit somewhat dated (2006), review of cases that have invalidated FMLA regulations, see http://www.protectfamilyleave.org/pdf/spencerfaneltigation080103.pdf   

Comment:  The stage has been set for the White House to bargain with Congress regarding changes to the FMLA.  Legislation expanding the FMLA to cover leave for military service members is awaiting the President's signature.  At the same time, the DOL's proposed changes to the FMLA regulations have been sent to the White House for approval.  While the White House does not technically need the approval of Congress to change the FMLA regulations, it seems more than coincidental that both just happen to be at the White House at the same time. 

My guess is that something will be informally worked out over the next few days.  The President will initially sign the military service expansion.  Sometime thereafter the DOL will issue the proposed changes to the current FMLA regulations.  Of course, the deal could already be in place.  In any event, get ready folks for some major FMLA changes!