Amendment to Statute Regarding Military Service Members; FMLA: Labor Department Proposes New Regulations

The National Defense Authorization Act for fiscal year 2008 (“NDAA”), which became law on January 28, 2008, amended the Family and Medical Leave Act of 1993 (“FMLA”) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks 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 is otherwise on the temporary disability retired list, for a serious injury or illness.” Additionally, the NDAA allows 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 on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

The Department of Labor (“DOL”) has yet to provide any comprehensive guidance with respect to leaves involving employees’ family members in military service. However, the DOL does recommend that employers follow presently acceptable practices and act in good faith when providing those leaves.

Shortly after the NDAA took effect, the DOL published proposed comprehensive revisions to the present FMLA regulations to clarify current practices and resolve ambiguities. Among the more noteworthy items, the proposed regulations:

  • Clarify the eligibility rules to require that employers credit time that an employee would have worked but for a military leave of absence toward the 12 month/1250 hour minimums and exclude from that calculation tenure that accrued prior to a break in employment of more than five years. Additionally, leave time granted prior to employee eligibility would not count against the 12 week leave entitlement.
  • Change the current regulations to permit employers to deny such things as “perfect attendance” or other merit-based bonuses to employees who fail to fulfill the bonus requirements due to an FMLA leave – unless the bonus would have been paid had the employee been on a non-FMLA leave.
  • Include a new Certification of Health Care provider form that would require the provider, through a series of questions, to (a) give a diagnosis, (b) evaluate whether a condition is a “serious health condition,” (c) confirm the medical necessity of intermittent and/or reduced schedule leave, and (d) state the anticipated recurring frequency and duration of the incapacity. There is also additional guidance covering the employer’s right to contact the provider to authenticate and clarify the Certification.
  • Allow employers and employees to settle past FMLA claims without DOL or court approval.
  • Permit employers to enforce substance abuse policies mandating termination of employment, even if the employee is on FMLA leave for substance abuse treatment.
  • Define the term “periodic” as being two or more visits to a health care provider for purposes of determining whether the visits are for treatment of a chronic serious health condition.
  • Permit employers to (a) substitute paid leave for unpaid FMLA leave so long as the employer clearly discloses that meeting paid leave requirements is necessary to meeting unpaid FMLA leave requirements; and (b) agree to use paid leave to supplement short-term disability benefits that do not pay the full amount of the employee’s salary.
  • Require that employees requesting intermittent leave “make a reasonable effort to schedule leave so as not to disrupt unduly the employer’s operations.” This provision appears less-favorable to employers, since the term “unduly” has been added. The current rule requires only that the employee “attempt to schedule their leave so as not to disrupt the employer’s operations.”
  • Permit employers to electronically post the FMLA general notice poster so long as all employees have access to a company computer. Additionally, employee handbooks must still contain FMLA information. In the absence of a handbook, employers must distribute a notice of FMLA rights to each employee at least annually. The proposed regulations also include a new FMLA poster.
  • Delineate the employer’s notice obligations, response time for leave requests, the substance of the response, and the consequences for failure to give notice and/or to timely designate FMLA leave.

We will continue to monitor developments with the NDAA and proposed regulations and provide periodic updates. In the meantime, if you have questions regarding your obligations under the FMLA, and in particular, under the recent amendment, please feel free to contact a member of Berry Moorman’s Labor and Employment Group.