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Washington Labor & Employment Wire » DOL Wage and Hour Division Issues New FMLA Rule

DOL Wage and Hour Division Issues New FMLA Rule


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On November 17, 2008, the Department of Labor’s Wage and Hour Division (WHD) published its final rule for the Family and Medical Leave Act (FMLA). Enacted in 1993, the FMLA provides that covered employers must grant eligible employees up to 12 weeks of unpaid leave within a 12-month period for the birth and care of a newborn child, the adoption of a child, the care of an immediate family member with a serious health condition or medical leave when the employee himself or herself is unable to work due to a serious health condition. In addition to reorganizing the prior FMLA rule to make it clearer, the final rule makes several substantive changes, including (1) incorporating the National Defense Authorization Act of 2008 (NDAA), which had extended the FMLA to allow leave in certain circumstances to care for a family member who has served in the Armed Forces, and (2) revising other provisions of the FMLA rule to reflect criticisms and comments in the FMLA’s application.

Incorporating the NDAA

The NDAA amended the FMLA to allow for greater care for injured service members of the Armed Services. The NDAA provides that the new leave policies would apply to an employee who is the “spouse, son, daughter, parent, or next of kin of a covered service member.”  While the existing FMLA definition of son or daughter only includes minors under 18 years of age and adults who are incapable of self-care, the final rule applies a more expansive definition of “son or daughter” in determining eligibility to care for covered service members.

The NDAA authorizes two major grants of leave.  First, employers must grant employees up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member’s active duty status, notification of an impending call, or order to active duty status. Second, employers must grant employees up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a “serious injury or illness” incurred in the line of duty on active duty. “Serious injury or illness” includes conditions where the service member is “(1) undergoing medical treatment, recuperation, or therapy; or (2) otherwise in outpatient status; or (3) otherwise on the temporary disability retired list.” 

Revising the FMLA

The final FMLA rule largely tracks the proposed rulemaking issued in February 2008. For a more detailed discussion of how the new rule changes the operation of the FMLA, please see our March 10, 2008 analysis of the proposed rule. In short, the final rule confirmed a number of changes in the proposed rulemaking:

▪           Joint Employer Coverage. Professional Employer Organizations (PEOs) that perform merely administrative functions (like managing payroll or benefits) are not joint employers.

▪           “Serious Health Condition.” While there was no change to the substantive “serious health condition” definition, the new rule now requires employees claiming “chronic illnesses” to visit a health care provider twice in a year and employees claiming incapacity to visit a health care provide twice within 30 days of the incapacity.

▪           Primary Worksite.  For employees who physically work at one location but whose primary employer assigns work from a different site, the primary employer’s location remains the primary worksite for one year. Only after a year of physically working at the remote site will the remote site become an employee’s primary worksite.  

           Scheduling Intermittent Leave. Employees seeking intermittent leave must make a “reasonable effort” to schedule leave so as not to unduly disrupt an employers’ operations.

▪           Substitution of Paid Leave. Employers are not required to permit employees to substitute their paid leave for unpaid FMLA leave if that substitution would be inconsistent with employers’ policies for paid leave (e.g., advance notice requirements, etc.).

▪           Holidays. If a holiday falls within a partial week of FMLA leave, then the holiday is not counted against an employee’s FMLA leave, unless the employee would otherwise have been required to work on the holiday. If the holiday falls within a full week of FMLA leave, then the holiday has no effect and the week is counted as a week of FMLA leave. 

▪           Bonuses. Employers can disqualify employees from achievement bonuses if employees fail to make a goal because of FMLA leave, so long as employees on other forms of leave are treated in the same way.

▪           Employer Notice Requirements. Employers must provide notice that leave is designated FMLA leave within five days after employees provide notice of leave. Employers can retroactively designate leave as FMLA leave if such a designation “does not cause harm or injury” to the employee.

▪           Employee Notice Requirements. An employee must give at least 30 days’ advanced notice for foreseeable leave. For unforeseeable leave, employees must give notice “as soon as practicable,” which is defined to mean “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.”

▪           Medical Certification. While health care providers still cannot disclose an employee’s medical information without his or her consent, employers can use an employee’s refusal to provide consent as grounds to question a certification. Employers can require annual medical certification when the serious health condition extends for more than one year.

▪           Restructuring the FMLA Rule. Various provisions have been reorganized to improve readability. For example, several provisions implicating pregnancy have been collected into the new § 825.120 and the provisions implicating FMLA rights with regard to adoption or foster care have been consolidated into the new § 825.121.