AFFIRMATIVE ACTION PLANNING GUIDE - Florida …



DEPARTMENT OF LABOR ISSUES NEW FAMILY AND MEDICAL LEAVE ACT REGULATIONS

Introduction

On January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA) which included new military leave provisions to be included under the Family and Medical Leave Act (FMLA). In order to implement the provisions of the NDAA and in response to employer and employee concerns regarding some of the administrative challenges with existing FMLA provisions, the Department of Labor (DOL) issued a new set of final regulations on November 17, 2008 which become effective on January 16, 2009. These new regulations bring about major changes to the way in which FMLA is administered as well as clarify some existing language to better illustrate legislative intent in how the law should be implemented. The DOL attempted to balance the concerns of both employer groups as well as concerns voiced from employee advocates by incorporating some of the comments received from the public after the DOL requested their input. This document highlights the major changes to existing FMLA provisions in terms of employer and employee rights under the law and summarizes how family military leave under the law is to be administered.

Changes to Existing FMLA Provisions

Employee Eligibility

As with previous FMLA regulations, employees still must be able to meet the three prongs of eligibility criteria in order to be covered by FMLA. Employees still must:

• Work for a covered employer;

• Have worked at least 1,250 hours in the 12 months immediately preceding FMLA leave commencement; and

• Have at least 12 months of service with the employer.

Previously though, in order to meet the 12 month criteria, any time worked with the employer contributed to the 12 month requirement regardless of whether there was a break in service. For example, an employee could work for an employer for 12 months, terminate employment and then reestablish employment 10 years later and be eligible for FMLA coverage as long as they met the 1,250 hour requirement. Now however, any time worked after a break in service of over seven years need not be considered by the employer as contributing to the twelve month requirement unless the break in service is due to military service or if there is a written agreement reflecting an employer’s intention to rehire the employee after the break in service (this includes a collective bargaining agreement). This means that agencies may have to confirm hours worked with an employee’s previous State Personnel System (SPS) agency if an employee transferred from another SPS agency.

In addition, the regulations clarify that if non-FMLA leave is granted to an employee before that employee is eligible for FMLA leave, and the employee becomes eligible for FMLA leave during that time period, the leave period before the employee is eligible for FMLA leave is considered non-FMLA leave while the period after may be considered FMLA leave. (29 CFR 825.110)

Employer Notice Requirement

The new regulations create a new comprehensive section which details the employer notice responsibilities with respect to FMLA. To summarize, the new regulations require three notices, some of which are the same as required by previous regulations, but which may have new timelines and content requirements. Employers are required to provide:

• A general notice of employee rights under FMLA, which must be posted in a conspicuous place at the worksite (See Appendix). In addition, the general notice now must be distributed to employees individually either through an employee handbook or distributed to new hires. The DOL also stipulated that employers with a high contingency of non-English speaking employees must post a translated version of the general notice. Employers that post their handbook electronically are considered to meet this requirement only if it is universally accessible.

• An eligibility notice, which is now required within five business days of receiving a request for FMLA leave or learning leave may be FMLA protected leave (previously it was required within two days of the request). However, the new regulations require more content to be included in the eligibility notice (Form WH-381 –See Appendix). In addition to notifying the employee of whether or not they meet the basic eligibility requirements of FMLA (e.g. worked for at least 12 months with the employer and worked at least 1,250 hours in the previous 12 months), employers must inform the employee of the reasons why they did not qualify for coverage under FMLA. Employers must also include information regarding the employee’s FMLA rights and responsibilities. This includes information on the medical certification requirements and the consequences for not meeting those requirements, as well as information regarding fitness for duty certification requirements and the consequences for not meeting those requirements. The eligibility notice is good for up to a year, but a new notice may be required if eligibility changes and a new condition arises.

• The designation notice, which notifies an employee whether or not the leave requested will be designated as FMLA leave, is required within five business days of having enough information to determine whether leave is covered under FMLA (Form WH-382 – See Appendix). It must state whether or not the leave is designated as FMLA leave and the amount of leave that will be designated, if known. If the amount of FMLA leave is unknown at the time of designation (e.g. intermittent leave), the employer must notify the employee of the periods designated as FMLA by the next pay day after an employee’s request for such information. The new regulations invalidate the Ragsdale court decision and allow FMLA designation to be retroactive so long as it is timely (within five days of having enough information to determine leave is covered under FMLA). (29 CFR 825.300)

Employee Notice

The new regulations also bring some changes to the responsibilities of employees in providing notice of intent to use FMLA leave. Previously, an employer was able to require an employee to comply with the usual and customary notice and procedural requirements for using leave, but an employer was not permitted to deny or delay leave to an employee because of the failure to follow procedures. Now, employees are required to provide at least 30 days notice of intent to use FMLA leave for foreseeable reasons and in the event the employee does not provide 30 days notice, the employer may ask the employee to explain reasons why providing such notice was not practicable. Employees must provide “sufficient information” for employers to decide if FMLA leave is warranted. Employers may now deny or delay leave if the employee fails to follow this requirement. For example if the employee provides 10 days notice when the employee could have reasonably provided 30 days notice, the employer may delay the start of FMLA leave for 20 days. Although, the regulations allow the employer to delay the start of FMLA leave, the Department of Management Services – Division of Human Resource Management recommends that agencies refrain from doing so in order to ensure an employee’s FMLA leave can run concurrently with Florida’s Family Supportive Work Program where possible. (29 CFR 825.302, 825.303, 825.304)

Medical Certification

Previously, an employer was permitted to contact an employee’s health care provider with the employee’s permission only for purposes of obtaining authentication of the certification. The new regulations, however, allow an employer to contact the employee’s health care provider without the employee’s consent to authenticate a medical certification (Forms WH 380-E and WH 380-F – See Appendix). If an employer requires additional medical information (HIPAA protected) in order to determine FMLA designation, an employer may contact the employee’s health care provider with the employee’s consent if the employee has been given a chance to cure any deficiencies on the medical certification. If the employee has been given a chance to cure any deficiencies on the medical certification and still refuses to give consent to allow the employer to contact the health care provider directly, the employer may deny FMLA leave. When contacting an employee’s health care provider, only select individuals may speak with the health care provider. These include the employer’s own doctor or nurse, an HR professional, a leave administrator or a management official, but under no circumstances may an employee’s direct supervisor speak with the employee’s health care provider. Again, the employer must notify the employee of the medical certification requirement and the consequences for not meeting the requirement within five days of an employee request and the employer must allow 15 days for an employee to provide medical certification. The new regulations now allow for annual medical certifications for conditions lasting more than one year, including chronic conditions. Currently, the law allows for recertification in connection with an absence for a chronic or long-term illness or pregnancy every 30 days. This is unchanged in the new regulations. However, recertification may be requested every six months for extended leaves, no matter what the duration listed on the medical certification. Recertification may be sought in less than 30 days if the employee asks for an extension of leave, if circumstances have changed, or if an employer doubts an employee’s status. The law has always allowed the employer to require fitness for duty certifications before an employee could return to work, however it prohibited employers from requiring fitness for duty certifications from employees that used FMLA leave intermittently. Under the new regulations, an employer may now require fitness for duty certifications every 30 days if intermittent leave is used and “reasonable” concerns for safety exist. The employer may also provide a list of essential job duties that are listed in the designation notice and ask the health care provider to identify those that an employee can perform. (29 CFR 825.305, 825.306, 825.307, 825.308)

Serious Health Condition

An employee may be covered under FMLA if they meet one of six definitions of a serious health condition. Currently, inpatient care, incapacity in excess of three consecutive calendar days plus treatment; pregnancy; chronic conditions; multiple treatments and long-term conditions may all qualify an employee for coverage under FMLA. In particular, incapacity in excess of three consecutive calendar days plus treatment has become problematic because non-serious health conditions often meet that portion of the criteria. Therefore, the new regulations clarify that in order to qualify for FMLA leave under the “incapacity in excess of three days,” prong, an employee must make two doctor’s visits within 30 days, the first of which must be within seven days of the incapacity. For chronic and long-term conditions to qualify as a serious health condition, an employee must visit the physician at least twice a year. (29 CFR 825.113)

Calculation of Leave

The new regulations clarify that an employer may count holidays as FMLA leave if the employee is on FMLA leave the entire week in which the holiday falls. If the employee takes FMLA leave for less than the full workweek in which a holiday falls, then the employer may not count the holiday as part of FMLA leave.

In addition, FMLA leave must be tracked using an increment no greater than the shortest period of time that an employer uses to account for other forms of leave, provided that this does not exceed one hour increments. This is different from the previous interpretation which required that the employer use the shortest period tracked by payroll. This means that the State Personnel System still must track FMLA leave in quarter-hour increments. Furthermore, if an employee is using an intermittent or reduced schedule FMLA leave, and it is physically impossible for an employee to access the worksite after the start of the shift (e.g. airline pilot, ferry operator), the entire period the employee is unable to access the worksite may count as FMLA leave. The employee must be permitted, however, to resume work when physically possible to do so at the employee’s normal work site. (29 CFR 825.200, 825.205)

Paid Leave Substitution

An employer has always been permitted to allow substitution of paid leave benefits, such as vacation or sick days, while on FMLA leave, but now an employer may require an employee to substitute paid leave for unpaid FMLA leave or require an employee who requests paid leave substitution to comply with the terms and conditions of the employer’s paid time off policy so long as it applied consistently among employees. The employer must inform the employee of the terms and conditions of the policy and if the employee does not meet the conditions, the employee is still entitled to unpaid FMLA leave, but must forego paid leave benefits.

Furthermore, the regulations offer clarification on the interaction between FMLA and disability benefits and workers’ compensation. Previously there had been confusion on how any supplemental pay for disability benefits and workers’ compensation benefits were to be counted against FMLA entitlements. The regulations now clearly stipulate that employees and employers may voluntarily agree to supplement workers’ compensation benefits with accrued paid leave where state law permits. This means that if an employee is out on leave which qualifies as a serious health condition under FMLA and which entitles the employee to workers’ compensation benefits which equal 2/3 of the employee’s regular pay, the employee and employer may voluntary agree to supplement that remaining 1/3 of the employee’s pay with any accrued paid leave. The entire time off would count against the employee’s FMLA entitlement since FMLA leave is not calculated based on whether the leave is paid or unpaid. The same substitution rule applies to situations when an employee receives disability benefits which do not equal 100 percent of the employee’s regular pay. (29 CFR 825.207)

Light Duty

Some recent court interpretations had allowed employers to count time spent on light duty assignments against an employee’s twelve week entitlement of FMLA leave. In the new regulations, however, legislative intent was articulated to prohibit employers from counting light duty assignments against an employee’s FMLA leave entitlement. Instead, if an employee voluntarily accepts a light duty assignment, the employee maintains any FMLA leave balance not used and the employee’s right to job restoration is held in abeyance until the employee is able to return to regular duty. (29 CFR 825.220)

Bonuses

Recent court rulings have held that an employer could not penalize an employee from receiving a bonus or other award if the reason for failing to meet the goals of the bonus or other award were because of an employee’s use of FMLA leave. The new regulations, however, permit an employer to deny a goal-based bonus or award, even if the failure to meet the goal was because of the use of FMLA leave. Previously, for example, if an employer paid a cash bonus for perfect attendance and an employee had perfect attendance but for six weeks out of the office while on FMLA protected leave, an employer was required to consider the employee as meeting the criteria for the award and required to provide the bonus. Under the new regulations, the employer is able to consider the employee as failing to meet the required goal for the award and deny payment of the bonus. (29 CFR 825.215)

Waiver of Rights

The new regulations also allow employers to settle retrospective FMLA claims without Department of Labor oversight for administrative ease. The regulations still prohibit, however, allowing employees to prospectively waive their FMLA rights. (29 CFR 825.220)

Overtime

Under the old regulations, employers were prohibited from counting any overtime that an employee would have been required to work against their twelve week FMLA leave entitlement. For example, if a standard week consisted of 48 hours for an employee but they had medical certification that they could only work 20 hours a week, only 20 hours may have counted against their FMLA entitlement. With the new regulations, if an employer can demonstrate that the employee would have been required to work overtime, the overtime hours may be counted against the leave entitlement. In this example, the employee would be considered to have used 28 hours of FMLA leave as opposed to 20. (29 CFR 825.206)

Military Leave Provisions

Among the most significant changes to the regulations, is the inclusion of provisions for administering military leave coverage. The NDAA introduced two new types of covered leave under the FMLA; leave to care for a covered service member with a serious injury or illness known as military caregiver leave and leave for a qualifying exigency arising out of the fact that a covered family member has been called to active duty or has been notified of an impending call to order. Although the leave is described in the NDAA, several issues were directed to be resolved by the Department of Labor and so these issues are addressed in the final regulations. The same general baseline eligibility requirements apply to both types of leave in that the employer is considered a covered employer with 50 or more employees and the employee must have at least 12 months of service with the employer and have worked at least 1,250 hours in the previous 12 months, but the regulations add some additional eligibility qualifiers and some new leave protections.

Qualifying Exigency Leave

The leave protections afforded to covered employees who qualify for exigency leave under FMLA are the same as those under traditional FMLA. Qualifying exigency leave allows of up to 12 workweeks of unpaid leave “because of any qualifying exigency (as the Secretary [of Labor] shall by regulation determine)” for a spouse, son, daughter, or parent of a service member who is “on active duty (or notified of an impending call or order to active duty) in the Armed Forces, in support of a contingency operation.” This leave is tracked using the same 12 month period used to track traditional FMLA and employees are entitled to a total of 12 weeks FMLA leave in a 12 month period regardless of whether the leave is for traditional leave or for a qualifying exigency. For example, an employee who has already exhausted 12 weeks of traditional FMLA leave in a 12 month period is not entitled to an additional 12 weeks of leave. DOL has limited qualifying exigency leave to families of National Guard and Reserve Service Members (members of the regular armed forces do not qualify as a “covered military member” for purposes of qualifying exigency leave) and provides an exhaustive list of reasons for which eligible employees may take qualifying exigency leave. The list includes:

1. Short-notice deployment – To address any issues that arise from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment. Leave for this purpose may only be used for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty.

2. Military events and related activities – To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member.

3. Childcare and school activities – To arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement; to provide childcare on urgent, immediate need basis (but not on a routine, regular basis) when the need to provide such care arises out of the active duty or call to active duty status of a covered military member; to enroll in or transfer a child to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and to attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors for a child when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.

4. Financial and legal arrangements – To make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status such as preparing and executing financial and healthcare powers of attorney or transferring bank account signature or authority; and to act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty status and for a period of 90 days following the termination of the covered military member’s active duty status.

5. Counseling – To attend counseling provided by someone other than a healthcare provider for oneself, for the covered military member, or for the child of a covered military member provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

6. Rest and recuperation – To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

7. Post-deployment activities – To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status or to address issues that arise from the death of a covered military member while on active duty status, such as making funeral arrangements.

8. Additional activities – To address other events which may arise out of the covered military member’s active duty or call to active duty status, provided that the employer and employee agree on timing and duration of such leave.

An employer may require an employee to provide a copy of the covered military service member’s active duty orders the first time the employee requests exigency leave. The employee, however, only needs to provide this information once for each call to active duty. In order to substantiate the need for qualifying exigency leave, an employer may require an employee to provide certification which includes the following information:

1. A description, signed by the employee, describing facts supporting the leave request and including any available documentation such as a copy of a meeting announcement, appointment, or a copy of a bill for service;

2. The approximate date the qualifying exigency leave commenced or will commence;

3. The beginning and end dates for the absence if the request is for a single period of time;

4. An estimate of the frequency and duration of the exigency leave if the request is for leave on an intermittent or reduced schedule; and

5. Contact information for the third party or entity and a brief description of the purpose of the meeting if the exigency leave involves meeting with a third party (such as a teacher conference).

In order to assist in the facilitation of the process, DOL has developed an optional form for this purpose (Form WH-384 – See Appendix). Once all of the information necessary to determine whether the leave qualifies as FMLA exigency leave and when a designation has been made, an employer may not request any additional information. However, an employer may contact the third party provided in the certification to verify the meeting and the purpose of the meeting and the employer does not need the employee’s permission to do so. (29 CFR 825.126, 825.309)

Military Caregiver Leave

Definition of Covered Service Member

The NDAA actually extends additional leave protection for covered employees that require leave to care for a covered military service member. An employee who is the spouse, son, daughter, parent, or next of kin of a covered military servicemember may use up to 26 weeks of unpaid leave during a single 12 month period to care for the servicemember’s serious illness or injury. A covered servicemember is defined as one who is undergoing medical treatment, recuperation, or therapy, who is otherwise in outpatient status, or is otherwise on the temporary disability list (TDRL), for a serious injury or illness. The serious injury or illness is covered only if it was incurred while in the line of duty and renders the servicemember medically unfit to perform military duties. This determination will be made by the Department of Defense. (Form WH-385 – See Appendix)

In order for an employee to be eligible for the leave, an employee must be the spouse, child, parent or next of kin of the covered servicemember. Next of kin is defined in the regulations as the nearest blood relative of the servicemember, other than the servicemember’s spouse, parent, son, or daughter in the following order of priority: Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins. However, any specific designation of next of kin by the servicemember for purposes of military caregiver leave takes priority. When there is no designation made and more than one family member with the same level of relationship (e.g. two sisters), all such family members are considered to be next of kin by the regulations and are all eligible for military caregiver leave under the FMLA. When a specific designation is made, the person designated by the servicemember shall be considered the servicemember’s only next of kin. The employer may require confirmation of the employee’s relationship to the covered servicemember. (29 CFR 825.127)

Length of Leave

A total of 26 weeks of unpaid leave are available to an employee to care for a covered servicemember in any single 12 month period. The 12 month period is measured by counting forward from the first day of military caregiver leave use. The use of military caregiver leave does not preclude the use of traditional 12-week caregiver leave; however an employee is limited to a total amount of 26 weeks of FMLA leave in a single twelve month period. Use of military caregiver leave does not prevent an employee from using another 26 weeks of leave for a separate illness or injury for the same covered servicemember or for another covered servicemember, since leave is on a per-covered servicemember, per injury or illness basis. Therefore, circumstances may exist where an employee takes multiple leaves totaling, but not to exceed, 26 workweeks in each 12-month period.

This type of leave is tracked separately from traditional FMLA leave in that a new 12 month period begins at the start of leave use. However, any traditional FMLA leave used after the start of military caregiver leave use contributes to the 26 week maximum leave entitlement for the 12 month period. Again, employees must meet the same basic leave eligibility requirements in terms of their tenure of service with the employer and the amount of time worked in the previous 12 months.

Summary

While the new regulations offer some new challenges for employers, there are many components that should provide relief in terms of an employer’s ability to administer the law, particularly with respect to mitigating FMLA leave abuse. The regulations are effective on January 16, 2009 and so agencies must be prepared to address any requests under the new system, especially with regard to family military leave requests. Therefore, agencies should understand the changes to traditional and family military provisions. More information may be found on the DOL – Wage and Hour Division website at esa/whd . Once a thorough review is complete, agencies should examine agency policies, procedures and forms to ensure compliance with the new regulations. As new policies and procedures are developed, staff must be trained in how to administer an agency’s FMLA program. This includes both HR staff as well as supervisors, since it is imperative that front line supervisors recognize the importance of administering FMLA procedures correctly.

In the coming months, the Department of Management Services – Division of Human Resource Management (DMS-HRM) will be reviewing FMLA regulations to identify areas where the State Personnel System would benefit from consistent FMLA administration among agencies and will develop appropriate policies. For more information on the new regulations, please contact DMS-HRM or for information regarding specific cases of eligibility or interpretations, the Department of Labor- Wage and Hour Division can be reached at 1-866-487-9243.

Appendix

Links to Department of Labor FMLA Forms

Along with the final regulations, the Department of Labor has also updated existing FMLA forms and created new ones to align the forms with FMLA regulations. The following links to the DOL website provide sample forms that employers may choose to use when administering FMLA or may serve as a template for creating FMLA forms.

Sample General Notice

Sample Eligibility Notice (WH-381)

Sample Designation Notice (WH-382)

Sample Medical Certification for Own Serious Health Condition (WH380-E)

Sample Medical Certification for Family Member’s Serious Health Condition (WH380-F)

Sample Certification for Qualifying Exigency (WH-384)

Sample Certification for Injury or Illness of a Covered Service member (WH-385)

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State Personnel System

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SUMMARY OF CHANGES TO FMLA REGULATIONS

DIVISION OF HUMAN RESOURCE

Management

January 14, 2009

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