In addition to these four reasons, the FMLA was amended in 2008 by the National Defense Authorization Act (“NDAA”) to permit 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 called to active duty in the Armed Forces in support of a contingency operation. The NDAA also amends the FMLA to permit a spouse, son, daughter, parent or next of kin to take up to 26 weeks 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 who is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty while on active duty.

The new FMLA regulations are extensive and cannot all be addressed herein, but the following outlines some of the most significant new regulations now in effect:

Employee Notice: Under the former regulations, in cases of unforeseeable leave, an employee was required only to provide notice of the need for leave to the employer “as soon as practicable.” The Department of Labor (“DOL”) interpreted that language to mean that an employee could wait up to two business days to report the FMLA absence from the time the employee became aware of the need for such leave. The DOL also took the position that employers could not enforce normal call-in procedures in such circumstances. The new regulation marks a direct change in the DOL’s position, stating that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence and that failure to follow such procedures can result in a delay or denial of FMLA protection.

Employer Notice Requirements: The new regulations incorporate a revised framework for employer notice requirements with the notice provisions being grouped into four main categories: general notice, rights and responsibilities notice, eligibility notice, and designation notice. Employers must post the new general notice poster in a conspicuous location where employees will be able to see it. The posting requirement for the general FMLA notice can now be satisfied by electronic means as long as the electronic posting is in a conspicuous place on the employer’s website, it is accessible to all applicants and current employees (not just on an internal intranet site) and all employees have access to company computers that post the information in a conspicuous manner. In addition, if the employer has an employee handbook, the general notice should be included in the handbook. The new regulations now require that employers who do not maintain an employee handbook distribute a copy of the general notice to each employee at the time of the employee’s hire, either in paper or electronic form. New regulations also lengthen the time period for employers to provide various notices from two business days to five business days.

Intermittent Leave: The regulation regarding accounting for increments of intermittent leave has been changed so that employers do not have to account for intermittent leave in the smallest amounts of time used in their payroll system (as was the case under the old regulations) and instead employers can now account for increments of intermittent leave in the smallest amount of time used to account for other forms of leave, provided that increment is no more than one hour. The new regulations also clarify that if an employee would have been required to work overtime hours but cannot do so because he or she needs to take intermittent leave for an FMLA-qualifying condition, that the employee may be charged FMLA leave for the hours not worked. This new regulation makes it clear that an employee who presents a note from a doctor saying that he or she cannot work more than 40 hours a week due to an FMLA-qualifying condition can be considered to be taking FMLA leave in cases where the employee would otherwise be required to work overtime.

Light Duty: Under the ambiguously-worded prior regulation, some courts held that an employee uses up his or her 12 week FMLA leave entitlement while on a “light duty” assignment following FMLA leave. The new regulation states that time spent voluntarily performing “light duty” work does not count against an employee’s FMLA leave entitlement and that an employee’s right to restoration to the same or equivalent position is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).

Serious Health Condition: The new regulations provide guidance on issues arising under the six individual definitions of “serious health condition,” clarifying that under the definition involving more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider,” that the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit to the health care provider must take place within 7 days of the first day of incapacity. Clarifying another definition of “serious medical condition,” the new regulations define “periodic visits” for chronic serious health conditions as requiring at least two visits to a health care provider per year.

Medical Certification Process: The DOL has adopted two new medical certification forms, one for when the leave is for the employee’s own serious health condition and a second form to be used when the need for leave is to care for a family member with a serious medical condition. The new forms include more specific areas for health care providers to provide medical facts, asks the health care providers to provide information on symptoms, doctor visits and the medical treatment regimen to better enable the employer to determine whether the leave qualifies under the FMLA, and allows (but does not require) doctors to provide a diagnosis, which was not permitted under the old regulations. Critically, the new regulations now allow an employer, as long as it is not the employee’s direct supervisor, to directly contact the employee’s health care provider as part of the clarification process, as long as a proper release has been executed by the employee. Further, the new regulations clarify that employees (or family members) are required to authorize the release of relevant background medical information regarding the condition for which leave is sought from the employee’s (or family member’s) health care provider to the second or third medical opinion provider.

The regulations specify that if an employer deems a medical certification to be deficient, the employer must specify in writing what information is lacking and give the employee seven calendar days to cure the deficiency. The new regulations also make it clear that an employer can request recertification of a medical condition every 30 days in connection with an FMLA-qualifying leave unless the medical certification indicates that the minimum duration is more than 30 days. Employers will be able to require recertification every six months, even where the certification indicates a longer period, and the regulations suggest that a certification that states a “lifetime” condition exists or that the duration of the condition is “indefinite” that it should be considered a condition that will last over six months (allowing a recertification every 6 months). The new regulations confirm that each new FMLA leave year gives the employer the opportunity to obtain a new “initial” certification, and, therefore, gives the employer the right to obtain a second and third medical opinion if there is reason to doubt the validity of the certification. This is significant in cases where an employer is suspicious about the validity of the medical certification of the employee’s condition as FMLA-qualifying, because under both the old and new regulations, employers cannot obtain second opinions in conjunction with recertifications.

Fitness-for-Duty Certifications: FMLA regulations allow employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to return to work. The new regulations make two changes to the “fitness-for-duty” certification process. First, an employer may now require that the certification specifically addresses the employee’s ability to perform the essential functions of the employee’s job. Second, where the employer has reasonable concerns about job safety, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.

Substitution of Paid Leave: The FMLA provides that employees may take, or employers may require employees to take, any accrued paid vacation, family, personal medical or sick leave, as offered by the employer, concurrently with any FMLA leave. The old regulations applied different procedural requirements to the concurrent use of vacation or personal leave than to medical or sick leave. Under the new regulations, however, all forms of paid leave offered by the employer will be treated the same, irrespective of the type of leave substituted (including generic “paid time off”). Any employee electing to use any type of paid leave must follow the same terms and conditions of the employer’s policy that apply to other employees for use of such leave. Note, though, that the employee is still entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave.

Regulations Addressing the New Military Family Leave Provisions

The new FMLA regulations provide clarification concerning the eligibility requirements and procedures for the two new military leave programs created by the NDAA.

Military Caregiver Leave: The son, daughter, spouse, parent or next of kin of a covered service member may take up to 26 workweeks of leave in a single 12-month period to care for a covered service member with a serious illness or injury incurred in the line of duty while on active duty. The new regulations clarify that a “covered service member” is defined to include a member of the armed forces who is undergoing medical treatment, recuperation or therapy, is otherwise on outpatient status or is otherwise on the temporary disability retired list, but does not include members on the permanent disability list and only includes current members of the armed forces, not retired members. Military caregiver leave is tracked in a 12-month period separate from any other 12-month period of FMLA leave, however, an employee is not entitled to 26 weeks of leave to care for a family member under this provision, plus an additional 12 weeks of leave for other FMLA-qualifying reasons.

Exigency Leave: The second new military leave entitlement allows an employee to take up to 12 workweeks of FMLA job-protected leave for a “qualifying exigency” arising out of that employee’s spouse, son, daughter or parent in the National Guard or Reserves being on active duty or having been notified of an impending call to active duty in the Armed Forces in support of a contingency operation. The new regulations broadly define a “qualifying exigency” to include the following circumstances: (1) Short-term notice deployment; (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation; (7) Post-deployment activities; and (8) Additional activities not encompassed in other categories, but agreed to by the employer and employee.

Recommended Steps to Ensure Compliance with the New FMLA Regulations

1. Use the DOL’s New FMLA Poster and its Model Notice and Certification Forms:

Employers are required to post the new FMLA poster prominently where it can be seen by both employees and job applicants. A copy of the new poster is available for free from the DOL and can be downloaded from the DOL’s website under the link to “Family and Medical Leave Act Poster.”

The DOL has also published several new model notice forms that employers are encouraged to use to comply with the additional employer notice requirements contained in the new FMLA regulations. Specifically, employers should start using the new notice of eligibility and rights and responsibilities form, certification forms and designation forms provided by the DOL in conjunction with the administration of their FMLA leave programs. The forms can be downloaded from the DOL’s website under the link to “Laws and Related Materials – FMLA,” where they are located under the “Forms” section for each of the new forms.

2. Update Your FMLA Policy:

Employers should review and revise their FMLA policy to make sure that it complies with the new FMLA regulations. Under the new regulations, every employer covered by the FMLA that promulgates an employee handbook is required to include in such handbook, at a minimum, all of the information that is included on the new FMLA poster. Employers can ensure compliance with the regulations by either including a copy of the poster in their employee handbook, or by incorporating the information contained on the poster into their existing FMLA policy. Those FMLA-covered employers without employee handbooks must remember that the new regulations require that they distribute a copy of the new FMLA poster to each new employee upon hiring.

3. Educate the Individuals in Your Organization Responsible for Administering the FMLA on the New FMLA Regulations:

The new FMLA regulations are comprehensive and address several highly technical aspects of the FMLA. Employers should identify the individuals within their organization charged with the responsibility for administering FMLA leaves and should have those individuals attend seminars, engage in professional reading and confer with legal counsel to gain an understanding of the new regulations and how they impact an employer’s administration of FMLA leaves. Also, it is important to make sure that all supervisors and managers, even those not directly involved in administrating FMLA leave, are aware of the new types of military-related leave available to employees, as they must avoid situations where the absences of family members of military personnel are mishandled due to a lack of awareness regarding the availability of military family leave.

The FMLA is a complex statute with an evolving array of implementing regulations and court interpretations. For more information on the FMLA or specifically concerning the new FMLA regulations, contact the Labor & Employment Practice Group at Thorp Reed & Armstrong, LLP:

Amy Berecek at 412 394 2367 or aberecek@thorpreed.com

Dennis J. Buffone at 412 394 7727 or dbuffone@thorpreed.com

Lisa C. Eldridge at 215 640 8514 or leldridge@thorpreed.com

Barry R. Elson at 215 829 9900 or belson@thorpreed.com

Jeffrey R. Gordon at 412 394 2359 or jgordon@thorpreed.com

Ellen P. Milcic at 412 394 2436 or emilcic@thorpreed.com

Kurt A. Miller at 412 394 2363 or kmiller@thorpreed.com

Megan L. Palumbo at 412 394 2558 or mpalumbo@thorpreed.com

Richard V. Sica at 412 394 7769 or rsica@thorpreed.com

Robert J. Shoop, Jr. at 412 394 7778 or rshoop@thorpreed.com

This Thorp Reed & Armstrong, LLP Communiqué is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance. We do not assume any responsibility to revise this Communiqué if there are subsequent changes in the law. To review other Communiqués previously distributed, please visit Thorp Reed & Armstrong’s web site at www.thorpreed.com.

April 2009