The Family and Medical Leave Act was expanded, for the first time since its inception in 1993, by the National Defense Authorization Act (P.L. #110-181) to include two new categories of leave for FMLA eligible employees:

The Department of Labor (DOL) subsequently issued final FMLA regulations that include changes to the proposed FMLA regulations and the rules covering the two new types of leave.  In addition to being more user friendly, the final regulations contain a modest increase in employee rights and obligation, a moderate increase in employer rights and obligations, a substantial improvement in the medical certification process and a few new tools to manage abuse.  The DOL final FMLA regulations became effective on January 16, 2009.
Changes to the existing FMLA rules
We will first review the rules for the two new categories, and then look at changes to existing rules which contain numerous technical revisions aimed at clarifying current policy:

Military Exigency Leave

This new category of leave allows an employee who has a spouse, son or daughter, or parent in the National Guard or Reserve to take FMLA leave due to a qualifying exigency resulting from the covered family member’s active military duty (or call to active duty status) in support of a contingency operation.

Amount, Timing and Other Terms of Exigency Leave

Employee Notice Requirements are the same as those for regular FMLA Leave under Final FMLA Regulations

Employer Notice Requirements are the same as those for regular FMLA Leave under Final FMLA Regulations

Certification
Employer may require a Certification of Active Duty and/or a Certification of Qualifying Exigency to support a request for exigency leave.  Although the DOL has a prototype “Certification for Qualifying Exigency Leave form (Form WH 384) employers can develop their own as long as it contains no more information than is permitted by regulations.  Certification must be returned within 15 days after employer request.  Presumably a Certification of Active Duty is in effect for the dates of the military member’s active duty status for the particular contingency operation and a certification of a particular contingency related to a particular military members active duty service is in effect for the duration of that particular exigency.
If certification is not returned at all within 15 days and the employee has not provided information about his/her diligent, good faith efforts to meet the due date, leave can be denied.
If a certification is complete or sufficient, the employer may not request additional information from the employee but the employer may verify the certification.
Recertifications are not permitted.

Definitions
“Active Duty” means military duty under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation or pursuant to any other law during a ward or during a national emergency declared by the President or Congress as long as it in support of a contingency operation.
“Covered Military Member” means a member of the military who is on Active Duty or call to active duty Status, and who is an employee’s spouse, son, daughter, or parent.
“Son or Daughter on Active Duty or Call to Active Duty Status” means a member of the military, of any age, who is on Active Duty or call to active duty status and who is an employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis.
“Parent” means an employee’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (as the term “son or daughter: is defined in the regulations), but does not include “parents-in-law.”
“Qualifying Exigency” means any one or more of the following non-medical, non routine activities and no others:
1. Short-notice deployment activities
2. Military events and related activities
3. Childcare and school activities
4 Financial and legal arrangements
5 Counseling activities
6. Rest and recuperation activities
7. Post-deployment activities; and/or
8. Additional activities

Military Caregiver Leave

This new leave entitlement allows eligible employees to take up to 26 weeks of job-protected "military caregiver leave" during a single 12 month period.  This leave must be used to care for a Covered Family Member with a serious illness or injury that was incurred in the line of duty while on Active Duty in the armed forces, National Guard or Reserves.  Military caregiver Leave is intended to allow an employee who is the spouse, son or daughter, parent or Next of Kin of a servicemember in the Regular Armed Forces, National Guard or Reserves (who has incurred a serious injury or illness in the line of duty while on Active Duty) to take FMLA leave to care for the servicemember.

Amount and Timing
An employee's entitlement to military caregiver leave is limited to 26 work weeks of leave within each 12 month period, per covered servicemember, per injury.  An eligible employee may take 26 work weeks of military caregiver leave in different 12 month periods to care for multiple servicemembers or to care for the same service member with a subsequent serious injury or illness.

Employee Notice Requirements are the same as those for regular FMLA Leave under Final FMLA Regulations

Employer Notice Requirements are the same as those for regular FMLA Leave under Final FMLA Regulations

Certifications
Employers may request that an employee seeking to take military caregiver leave provide a Certification of Military Status and/or a Certification of Serious Injury/Ilness from the Department of Defense (DoD).  Although the DOL has a prototype form “Certification for Caregiver Leave (Form WH – 385), the employer can develop its own as long as it contains no more information than is permitted by the regulations and does not seek information about any other medical condition.
Certification must be returned within 15 days after employer request.  If certification is not returned at all within 15 days and the employee has not provided information about his/her diligent, good faith efforts to meet the due date, leave can be denied
If certification is complete or sufficient, the employer’s representative (but not the employee’s immediate supervisor) may contact the servicemember’s HCP (or DoD representative) directly to authenticate and or clarify the certification.
A certification is in effect for the duration of the condition and period that the leave is needed as specified on the certification up to a maximum period of 12 months.
Recertification of an injury or illness is not permitted

Alternatively, the DoD may issue a special invitation (known as a Special Automatic Certification) to any member(s) of a servicemember’s family when a DoD Health Care Provider (HCP) has determined that the injury/illness is serious enough to warrant the immediate presence of a family member at the servicemember bedside.  A Special Automatic Certification is in effect for the duration specified on it.

Definitions
“Active Duty” means military duty under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation or pursuant to any other law during a ward or during a national emergency declared by the President or Congress as long as it in support of a contingency operation.
“Covered Family Member" means a spouse, child, parent or next of kin who is a Covered Servicemember.
“Covered Servicemember” means a current member (excluding a member on the permanent disability retired list and other retired/discharged member) of the Regular Armed Forces, National Guard, or Reserves, who is undergoing: medical treatment, recuperation, or therapy, is otherwise in Outpatient Status, or is otherwise on the temporary disability retired list (TDRL), for a Serious Injury or Illness incurred in the line of duty on Active Duty.
“Serious Injury or Illness” means an injury or illness incurred by a Covered Servicemember in the line of duty on Active Duty that may render the servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank or rating.
“Outpatient Status” means the status of a Covered Servicemember who is assigned to a military medical treatment facility as an outpatient; or a unit established for the purpose of providing command and control of members of the military receiving medical care as outpatients.
“Health Care Provider (HCP)” means the same as under regular FMLA leave, plus the health care provider for the purpose of providing any certification required by the employer must be either a DoD health care provider, a VA health care provider, a DoD TRICARE network authorized private HCP or DoD non-network TRICARE authorized private HCP.

“Next of Kin” means the nearest blood relative of a Covered Servicemember (other than his/her spouse, parent, son, daughter), in the following priority order:

Note:  If there are multiple family members within the same level of relationship, all are Next of Kin and each can take caregiver leave however, if there is a designated next of kin, he/she is deemed to be the only next of kin.
Changes Affecting Other Aspects of FMLA

Breaks in Service and FMLA Eligibility
To be eligible for FMLA leave, employees must have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12 month period preceding the leave.  The new regulations clarify that, although the 12 months of employment do not have to be consecutive, employers are not required to count employment prior to a continuous break in service of seven years or more, unless the break in service was caused by the employee's fulfillment of military service obligations in the National Guard or Reserves, or unless a collective bargaining agreement affirmed the employer's intention to rehire the employee after the break in service.

Employer Notice Requirements
The new regulations state that "electronic posting" of the FMLA notices that covered employers are required to post on their premises may be sufficient to satisfy the FMLA posting requirements in certain circumstances.  Additionally, the new regulations require that where an employer's workforce is comprised of a "significant portion" of workers who are not literate in English, the employer must provide the general FMLA notice in a language in which the employees are literate.  Employers will be required to notify employees who request FMLA leave of their eligibility for leave within five business days, absent extenuating circumstances.  Instead of providing a "preliminary" or "provisional" designation of FMLA leave, employers will be required to provide a written "Rights and Responsibilities" notice to each employee taking FMLA leave that details the specific expectations and obligations of the employee and the consequences of not meeting those terms.  The DOL has issued a new form "Notice of FMLA Eligibility and Rights & Responsibilities" (Form WH 381) that may be used for this purpose. Once the employer has received a completed certification or other information sufficient for it to determine whether leave is being taken or requested for an FMLA-qualifying reason, the employer will have five business days, instead of two, to "designate" leave as FMLA leave.  The DOL has issued a new form "Notice to Employee of FMLA Designation" (Form WH 382) that may be used for this purpose.

Employee Notice Requirement
The revised regulations place an increased burden on employees to provide notice of their need for FMLA leave. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, the new regulations specify that the employee's obligation to provide the employer with notice "as soon as practicable" will normally require the employee to provide notice either the same day or the next business day.  The new regulations also give employers the option of requesting that employees explain why it was not practicable for them to give the full 30 days notice.  When the need for leave is foreseeable, the new regulations clarify that employees must follow the employer's usual and customary notice and procedural requirements for requesting leave, absent extenuating circumstances.

New Medical Certification Requirements
The new regulations will allow certain employer representatives, including human resources professionals, leave administrators and management officials (but not an employee's direct supervisor) to contact an employee's health care provider to clarify and authenticate a medical certification presented in connection with an FMLA leave request.  The new regulations specify that in most cases, if employers want employees to provide a certification from a health care provider of their need for FMLA leave, employers should request such certification within five business days after the employee gives notice of the need for leave, or within five business days after the leave commences.  Once a certification is received, employers must provide written notice of any deficiencies by stating what additional information is necessary and give the employee seven days to supplement the certification.  The new regulations also strengthen employers' rights to obtain medical certifications and recertifications.  The new regulations also clarify that employers may request a new medical certification each leave year for medical conditions that last longer than a single leave year.  In addition, employers will be able to request recertification for ongoing conditions at least every six months in conjunction with an absence, and more frequently in some instances.  The DOL has issued two new forms, “Certification of Serious Health Condition – Employee's Own Condition" (Form WH-380-E) and "Certification of Serious Health Condition – Employee's Family Member's Condition" (Form WH-380-F), that employers may use for this purpose.

Clarification of the Definition of "Serious Health Condition"
The new regulations retain the six definitions of "serious health condition" that were already in effect, and they clarify three issues related to those definitions.  First, if an employee is taking leave under the "three consecutive calendar days of incapacity plus two visits to a healthcare provider" definition, the two visits must occur within 30 days of the period of initial incapacity, absent extenuating circumstances.  Second, if an employee is taking leave under the "three consecutive calendar days of incapacity plus a regimen of continuing treatment" definition, then the first visit to a health care professional must occur within 7 days of the initial incapacity.  Finally, the new regulations clarify that "periodic visits to a healthcare provider" for chronic serious health conditions means at least two visits to a healthcare provider per year.

Intermittent Leave
The new regulations clarify that employees who take intermittent leave for planned medical treatment that is medically necessary have a statutory obligation to make a "reasonable effort" to schedule the treatment so that it will not unduly disrupt the employer's operations unnecessarily.  They also clarify the rule requiring employers to account for intermittent or reduced schedule leave under the FMLA using an increment no greater than the shortest period of time the employer uses to account for other forms of leave, provided it is not greater than one hour. Specifically, the new regulations clarify that, while an employer may account for FMLA leave using shorter time increments than it uses to account for other forms of leave, it may not account for FMLA leave using longer increments than it uses to record other forms of leave.

Substitution of Paid Leave
The new regulations allow employers to apply their normal policies for taking paid leave when an employee substitutes paid leave for unpaid FMLA, regardless of the type of paid leave being substituted.  Employees who want to substitute accrued paid leave of any kind for unpaid FMLA leave must comply with the terms and conditions of the employer's normal leave policies.  While employers must allow substitution of paid vacation, personal leave, or "paid time off" for any situation covered by the FMLA, employees can be required to follow normal procedures.  This is a drastic change from the old regulations, which prohibited employers from imposing any limits on the substitution of paid vacation or personal leave for unpaid FMLA leave.

Fitness-for-Duty Certification
The new regulations make two principal changes to the fitness-for-duty certification process.  First, employers may now require that fitness-for-duty certifications specifically address the employee's ability to perform the essential functions of the job, as long as they provide the employee with a list of those essential job functions no later than when they provide the employee with the FMLA designation notice described above.  Second, where reasonable job safety concerns exist employers may now request a fitness-for-duty certification, up to once every 30 days, before allowing an employee to return to work from intermittent leave.

Light Duty
The new regulations clarify that employees who accept "light duty" assignments while recovering from a serious health condition are not considered to be on FMLA leave.  So the time eligible employees spend working light duty assignments may not be counted against their 12 weeks of annual job protected FMLA leave or their FMLA reinstatement rights.  In a modification of the previous rule, the new regulations state that employees who voluntarily accept light duty assignments that are offered by their employers in lieu of taking FMLA leave will lose their FMLA-based right to reinstatement to their original or an equivalent job if they remain in a light duty assignment at the end of the 12-month leave year period that the employer uses to calculate FMLA leave.

Perfect Attendance Awards
The new regulations change how perfect attendance awards are treated.  Employers are now allowed to deny a "perfect attendance" bonus or other award to an employee who does not have perfect attendance because he or she took FMLA leave. However, for this rule to apply, the employer must treat employees who take non-FMLA leave in the same manner.

Relief for Employers Who Fail to Properly Designate FMLA Leave
The new regulations eliminate the previous rule that required employers who failed to designate FMLA leave properly to offer affected employees an additional 12 weeks of FMLA-protected leave.  The new regulations eliminate this categorical penalty and clarify that that where an employee suffers harm because the employer failed to follow the FMLA notice requirements, the employer may be liable.

Rules Specific to Professional Employer Organizations (PEOs)
The regulation discussing the application of the FMLA to joint employers has been modified to include a specific reference to Professional Employer Organizations (PEOs), which are companies that contract with employers to perform administrative functions such as payroll, benefits and maintaining employment policies.  The revised regulations recognize that PEOs do not enter into joint employment relationships with the employees of client companies when they merely perform administrative functions.  However, when PEOs have the right to hire, fire, assign, direct and control their client's employees, depending on the circumstances, this can lead to a determination that the PEO and the client employer are joint employers.

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