The FMLA investigation often starts with a somewhat mysterious phone call from a DOL investigator identifying him or herself as such. What follows, though, is far from certain. Occasionally, the employer is informed why it's being investigated.  Other times, it's not. Occasionally, the matter is assigned a case number.  Other times, it's not.  At times, the DOL uses what appears to be a standard request for information - like this one.  Other times, a request for information looks much different - like this other one.  [Employer names redacted to protect the innocent.]

Last week, DOL Branch Chief for FMLA Diane Dawson sought to clarify the DOL's investigation process. Speaking at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition (DMEC), Ms. Dawson explained (from the DOL's standpoint) how a DOL FMLA investigation is initiated and what it looks like.  Although the presentation provided some valuable insight into the DOL's approach in an FMLA investigation, one nugget of information stood out:

The DOL expects to increase the frequency in which 

 it comes on-site during an FMLA investigation.  

Before we all start panicking, let me remind employers: the DOL always has had the right to conduct on-site investigations -- both announced and unannounced.  However, at least in the FMLA context, this approach has been virtually non-existent in my experience and based on anecdotal evidence shared by employers generally.  EEOC has increased this practice in recent years, but not the DOL.  

Given the infrequency of on-site visits to date, however, the change in the DOL's approach here is noteworthy.  In her DMEC presentation, Ms. Dawson reported that the DOL's national office has instructed its regional offices to identify occasions when it would "make sense" to conduct an on-site visit during an FMLA investigation.  Examples might include situations where an employer has racked up a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.  

So, why is the DOL changing its approach?  

The DOL reports that on-site visits are easier for its investigators largely because: 1) it tends to make the investigation less time consuming for the agency; 2) investigators have ready access to records, data, FMLA policies and FMLA forms; and 3) investigators can interview employees face-to-face while reviewing documents on-site.    

How Do Employers Prepare for an FMLA Investigation, including an on-site visit?

Given the DOL's new approach to FMLA investigations, Ms. Dawson advises employers to be proactive in their approach to FMLA compliance before the DOL even knocks on the door.  I couldn't agree more.  It makes good business sense for employers to engage in a self-audit their FMLA policies, forms and practices so they can substantially reduce their risk of FMLA liability in a DOL FMLA investigation or FMLA-related lawsuit.

Whether we agree or disagree with the DOL's new strategy, let's move past that.  We need to prepare for the inevitable.  So, grab your favorite employment counsel (if there is such a thing!?!) and start conducting that review!  A self-audit should include the following:

1. Conduct a thorough review of your FMLA policy.  Important compliance alert: Ms. Dawson pointed out that the DOL will review an employer's FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents.  As to your policy, is it up to date?  If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)?  Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee's obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
2. Adhere to the Employer Posting Requirements.  In addition to posting your FMLA policy in your handbook, employers also must post the DOL's FMLA poster "prominently" where it can be viewed by employees and applicants.  If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)  
3. Ensure your FMLA forms are legally compliant.  Examine all existing FMLA forms to determine whether they comply with FMLA regulations.  Again, your forms must incorporate the recent regulatory changes.  A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.  This is no small task.  In the DOL's model forms, for example, the DOL failed to include the GINA safe harbor language.  What!?!  View this post so you know the specific GINA language to add to your certification forms.
4. Prepare legally compliant FMLA correspondence.  In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee's return to work, second/third opinions.  These communications also will be reviewed by the DOL during an investigation.
5. Conduct a comprehensive audit of your FMLA practices and procedures.  A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA?  Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL's new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation?  f) Are you seeking recertification within the time periods allowed by the regulations and you're not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave?  h) Are you following the regulations' very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?  Don't have answers to these questions (or worse yet, you don't have a clue about what I'm referring to)?  All the more reason to pull in your in-house or employment counsel on this self-audit.
6. Clean up your recordkeeping now.  Are you maintaining all the data DOL will be looking for, and are your data accurate?  Employers should have ready their employees' identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave.  These documents should be maintained for at least three years, and they should be kept separate from the personnel file.
7. Train your employees!  Call me a resounding gong (of course, in the most endearing kind of way!), but why aren't more employers training their managers about FMLA compliance and their role in administering FMLA and following your FMLA policy?  There are way too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations.  Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability -- both in court and as a result of a DOL investigation.

Did I overwhelm you?  This was not my intention, so if you're rattled, I beg a thousand pardons! In an era of rigorous enforcement by the DOL and increased FMLA litigation, we need to take the time now to ensure we are FMLA compliant. The alternative is far too costly.  

I welcome your feedback on anything you believe is critical to the self-audit process above and which I missed.  Let's make this a continuing conversation...

(Hat tip to Marti Carti, Chief Compliance Officer at Reed Group, who did a great job outlining many of these self-audit principles during the DMEC presentation with Ms. Dawson.)

Our "nuts and bolts" presentation materials were closely modeled after an FMLA PowerPoint that the DOL just published and posted on its web site for the public's use.  The DOL's PowerPoint can be accessed here (PPT).  (Access the pdf version)

For what it's worth, I've found the DOL's PowerPoint to be very even-handed in providing an overview of the FMLA, and I'd recommend that employers incorporate portions of the PowerPoint into their own FMLA training materials.  

Of course, when using the DOL's PowerPoint to create training materials, it should be tweaked a bit to add emphasis on an employer's rights -- things like employee notice requirements, enforcing call-in procedures, and more background on requiring timely, complete and sufficient medical certification and re-certification -- but this PPT is a really good start.  Good enough of a start that I thought I would call to all of your attention.

Happy FMLA training!

Perhaps a bit lost in the changes to the regulations, however, is the obligation to begin using updated FMLA notice and certification forms and to post the new FMLA poster, effective March 8, 2013.  

Notably, the DOL's model forms will no longer be included as part of the appendices to the regulations.  Instead, they will be available on the DOL website.  This allows the DOL to make changes to the forms without having to approve every change through the federal government's Office of Management and Budget.  [Read: bureaucracy] A new certification form related to the serious injury or illness of a covered veteran also was created.

The new regulations also confirm employers' confidentiality obligations under the Genetic Information Nondiscrimination Act of 2008 (GINA). The DOL indicated in its final rule that GINA allows employers to disclose genetic information or family history obtained by the employer so long as it is consistent with the FMLA.  Nevertheless, the DOL did not propose adding any GINA safe harbor language in the new forms.  In a prior post, we recommended GINA safe harbor language for employers to include in medical certification.

Although employers can safely use the new FMLA forms, they also may adapt the DOL's version in creating their own forms, so long as these forms do not require the employee or health care provider to disclose more information than what is required by the FMLA regulations.  For those employers who have created their own forms, it is critical that you update your forms by March 8 to account for the changes in the final rules. 

At a minimum, I would recommend that employers review the forms closely with their employment counsel and tweak certain portions.  For example, in the updated Notice of Eliigibility (Part A), as to qualifying exigency leave, the DOL does not indicate that the call to active duty involves a deployment to a foreign county, which is a critical part of the leave entitlement.  This phrase should be added; otherwise, employees are likely to be confused about the entitlement.  

Where can you find the new FMLA forms and poster?  Here you go:

Forms

• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition(pdf)
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (pdf)
• WH-381 Notice of Eligibility and Rights & Responsibilities (pdf)
• WH-382 Designation Notice (pdf)
• WH-384 Certification of Qualifying Exigency For Military Family Leave (pdf)
• WH-385 Certification for Serious Injury or Illness of Current Servicemember -- for Military Family Leave (pdf)
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (pdf)

Poster

• New FMLA Poster

Still trying to figure out exactly what changed under the new rules? 

If my previous blog post missed the mark, the DOL has prepared a snazzy side-by-side comparison between the old and new regulations.

Military Family Leave

The new rules regarding military family leave are not controversial and effectively carry out the amendments made by the NDAA. 

Caregiver Leave

As for caregiver leave, it now can be taken up to five years afterthe service member leaves the military and for an injury or illness that results from a condition that predates the individual's active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Qualifying Exigency

Prior to the NDAA's enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  However, the NDAA and proposed regulations reverse that position.  FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members, so long as they are being deployed to a foreign country.  The final regulation also added and tweaked current qualifying exigencies:

• Expands from five to 15 days the amount of “Rest and Recuperation” FMLA leave an eligible employee can take to spend with a covered family member; and
• Creates a new category for parental care (caring for the servicemember's parent when the parent is incapable of self-care)

Airline Flight Crew FMLA Leave

Enacted in 2009, AFCTCA closed an apparent loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave. Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek.

AFCTCA applies the same concept to airline flight crews, providing that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the FMLA regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. This calculation does not include personal commute time, or time spent on vacation, medical or sick leave.  The changes will result in more employees who are eligible for FMLA leave. 

The final rule also includes:

• Listing of all special requirements applicable only to airline flight crew employees and their employers (subpart H);
• Adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reason and 156 days of military caregiver leave; and
• Imposition of special recordkeeping requirements on employers of airline flight crew employees.

Other Notable Changes (or Non-Changes!)

Physical Impossibility

Although the DOL appeared poised to make changes to the "physical impossibility rule," it simply reminded employers that this rule is to be applied in only the most limited circumstances, and that the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.  Notably, the DOL shared the following in its Fact Sheet 28I on the issue:

In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is designated as FMLA-protected leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents him from boarding the train before it leaves for its scheduled trip.

Increments of Leave

The DOL maintained a provision that allows employers to use varying increments of leave at different times of the work day or shift.  It reaffirmed the current rule that employers "must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour."

DOL's Model FMLA Forms

Notably, the WHD removed its model FMLA forms from the regulations’ appendices.  Employers may now locate the optional-use forms on the DOL website.  This change was made so that DOL has the flexibility to change (and hopefully, improve) the forms as needed without getting bogged down in the regulatory approval process.  DOL remarked that any future substantive changes to the forms will remain subject to normal notice and comment.

Resources

More information regarding the rule, including a side-by-side comparison of the new rule with the prior version, frequently asked questions and a fact sheet, is available on the DOL's website.

Photo credit: U.S. Department of Labor

As we know, an otherwise eligible employee is entitled to FMLA leave to care for a child with a serious health condition. Under the regulations, "child" is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence.  Thus, two factors must be present before an employee can take FMLA leave to care for his/her adult son or daughter: the child must be incapable of self-care and have a disability as defined by the Americans with Disabilities Act.

In short, the Administrator's Interpretation seeks to clarify three issues: 1) the age of the child at the onset of the disability; 2) the impact of the ADA Amendments Act of 2008 on the interpretation of 'disability' under the FMLA; and 3) the availability of FMLA leave for parents to care for an adult child who becomes disabled during military service.

My overall read of the AI?  It does not declare anything new or otherwise signal a change in direction by the DOL in how it approaches the adult child provisions of the FMLA.  In fact, one DOL official told me that the AI is meant to clarify and confirm the DOL's long-held position on caring for an adult child and provide guidance in this area to DOL field staff.  Despite the relative straightforward nature of the AI, there are a few nuggets in the AI of which employers should take note:

Age of the Disabled Child

In its AI, the DOL noted some confusion over whether it is relevant if the adult child's disability occurred before or after the son or daughter turns the age of 18.  Not surprisingly, the DOL confirmed that the age of the child at the onset of the disability is irrelevant to the determination.  Put simply, the FMLA covers an adult child who suffers from a disability that originated prior to age 18 as well as one that did not commence until adulthood.

Impact of the ADAAA 

In the FMLA regulations, the DOL long has adopted the ADA's definition of disability for purposes of defining a son or daughter over age 18 under the FMLA.  As expected, the DOL endorsed the changes to the definition of "disability" under the ADAAA and warned that these changes clearly will impact an employee's ability to take FMLA leave to care for an adult child. Notably, the DOL reminded readers that the EEOC's position that the definition of disability should "be construed in favor of broad coverage" and "should not demand extensive analysis" is persuasive in the FMLA context as well.  

What's the impact of the ADAAA on FMLA leave to care for an adult child?  The DOL unambiguously tells us in the AI:

The ADAAA's expanded definition of the term 'disability' will enable more parents to take FMLA-protected leave to care for their adult sons or daughters with disabilities . . . "

Requiring the Employer to be Clairvoyant?

Employers should take note of one particular example offered in the AI.  As I have noted in various FMLA presentations I've given over the past year, the employer's determination to designate FMLA leave usually occurs within the first couple of days or weeks of the need for leave.  In many instances, however, employers do not have enough information yet to make the FMLA determination because it does not have any confirmation that the adult child actually is disabled.  Take, for instance, a horrific automobile accident that leaves an adult child in serious condition.  Despite the child's current condition, the doctor opines that the child is expected to make a complete recovery.  Does this condition constitute one that rises to the level of a disability?  All too often, employers are not in a position to know.  In this context, the DOL offers some guidance in its AI:

An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

This example is relatively straightforward because the DOL tells us (in the middle of the paragraph above) that the daughter will be substantially limited in walking for six months. Under the watered down version of the ADAAA, this duration likely supports the notion that the child is disabled.  However, employers don't often have a prognosis of the kind delivered above.  In fact, employers very rarely receive a prognostication from a health care provider like the kind offered above.  My continued fear is that employers will be required to read the tea leaves in determining whether the adult child is disabled.

Impact on Military Leave

Finally, the DOL confirmed in its AI that parents of adult children who have been wounded or sustained an injury or illness in military service may be allowed to take more leave than the 26 workweeks provided for under the FMLA.  Noting that the servicemember's injury or illness may last beyond the 12-month period covered by the military caregiver leave entitlement, the DOL affirmed that the family member is entitled to take additional FMLA leave in subsequent FMLA leave years due to the child's serious health condition, so long as the adult child is unable to care for him or herself due to a disability.

Insights for Employers

Anything earth shattering in this AI?  No.  But it's good to see the DOL spring to life lately when it comes to the FMLA: in the past several months, it now has issued this AI on a thorny FMLA topic and published an Employee Guide to the FMLA, which we've found helpful to employees and employers alike.  Perhaps we'll get some final regulations soon on those proposed last year?  I'm not holding my breath!

For those of you playing along at home, here are links to the Administrative Guidance issued by the DOL yesterday:

1. Administrative Guidance
2. Fact sheet
3. Q and As on the Administrative Guidance

The Guide was unveiled at a DOL-sponsored webinar this week by DOL Wage and Hour Division Deputy Administrator Nancy Leppink and DOL Branch Chief for FMLA, Diane Dawson.  Ms. Leppink and Ms. Dawson provided an overview of the Guide and took questions from webinar attendees.  Although the webinar was geared toward employees and those generally unfamiliar with the Family and Medical Leave Act, I applaud the DOL for highlighting the FMLA in a webinar by two high ranking officials within the agency. 

As for the Guide itself, my initial reaction is that it will be well received by the employer community.  Don't get me wrong: the Guide primarily is meant to answer "common" questions about the FMLA, so it leaves unanswered all of the issues that continue to frustrate employers in their administration of the FMLA.  However, what I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process.

Many of the points emphasized in the Guide are likely to have some benefit to employers when administering the FMLA.  For instance, the Guide:

1. Contains relatively easy to follow flowcharts so that employees can better understand eligibility requirements and the FMLA notice process.
2. Provides a succinct definition of "serious health condition" so that employees better understand that FMLA leave cannot be utilized simply for the common cold.
3. Reminds employees that they must work with their employer to schedule medical treatments so as to not disrupt the employer's operations.
4. Contains examples of how accrued paid leave and FMLA run concurrently, so as to minimize an employee's oft-mistaken belief that the two cannot run together.
5. Emphasizes to employees the need to provide their employer with enough information so that the employer can determine whether the leave may be covered by the FMLA.
6. Highlights the employee's obligation to maintain regular contact with the employer during FMLA leave.
7. Makes clear that the employee -- not the employer -- is responsible for paying for the cost of obtaining medical certification from a health care provider.  (This can be a confusing principle, as doctors are increasingly charging for medical certification, and all too many employees mistakenly believe that the employer should pick up the tab.)
8. Lists the specific medical information that must be provided in the medical certification.

As Ms. Leppink pointed out in the webinar, the DOL encourages employers to use the Guide to facilitate discussion with employees where questions or confusion about the FMLA arise.  She may be onto something here, since employees are more likely to accept an employer's explanation of a document when it contains the DOL seal on front. 

Finally, I also was impressed that the DOL invited to the webinar stakeholder Charlie Fox, Executive Director of the Disability Management Employer Coalition, who provided his support for the Guide.  Clever move on the DOL's part to get the buy in of a strong employer-oriented organization. 

So, employers: what say you?  What's your initial take on this Guide?  Am I painting too rosy a view of this Guide?  Cynical responses are welcome, so long as you can back them up with good reasoning! 

The webinar also will include a "general" question and answer session for employees and employers, which will be moderated by an unnamed "FMLA expert."  Interesting teaser.  The webinar begins at 2:00 p.m., EDT.  Registration is required and can be accessed here.

In conjunction with this webinar, the DOL has published a booklet, "Need Time? The Employee's Guide to the Family and Medical Leave Act," which answers common questions about the FMLA.

I'll be taking notes during the webinar and will report back.  In the absence of any regulatory changes or major impending annoucements, don't expect anything too earth-shattering from the DOL, and therefore, me!

The post generated considerable feedback and some follow-up questions.  I wanted to highlight one of those questions.  One of our blog followers (see right hand column of our blog to sign up to receive our blog posts!) posed the following:  We have a policy that requires employees to use paid leave at the same time as FMLA leave.  However, paid leave can be taken only in one-half day or full day increments.  If an employee needs two hours of FMLA leave (e.g., to receive medical treatment), can an employer require that the employee use paid leave and FMLA leave in increments provided for under the employer's policy?  In other words, can the employer require the employee to use one-half day of paid leave and one-half day of FMLA leave?

This question raises a rarely discussed FMLA principle, but the short answer to the question likely is, "Yes."  If the employer's paid leave policy requires paid leave to be used in certain increments (e.g., half or full days), and the employee wants to use paid leave, then FMLA leave will be exhausted in the same increment of time as required by the paid leave policy.  The Department of Labor explains this principle in the following example, as outlined in its FAQs to the FMLA (pdf):

Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days.  Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.

The Employer Has Options

In light of the DOL guidance above, let's return to the question posed by our blog subscriber.  Because the employer requires paid leave to be used in one-half day or full day increments, it has the following options (presuming that the employee wants to use paid leave in conjunction with FMLA leave):

1. The employer can require the employee to take paid leave and FMLA leave in increments required by the paid leave policy.  Therefore, if the employee requires two hours of FMLA leave to attend a medical appointment, and the employer requires paid leave to be used in one-half day increments, the employee exhausts one-half day of paid leave and one-half day of FMLA leave).  Note to employers: employees cannot be charged FMLA leave for time in which they are working.  So, in an example of an eight-hour work day, you cannot require that an employee take one-half day of FMLA leave but insist that the employee return to work immediately after the two-hour medical appointment.  
2. The employer can make an exception to the paid leave policy and allow the employee to take paid leave and FMLA leave in a smaller increment of time.  Thus, if the employee needs two hours of FMLA leave to attend a medical appointment, the employer can account for two hours of paid leave and two hours of FMLA leave.
3. Now, put the two points above aside.  If the employee wants to take unpaid FMLA leave for the two-hour medical appointment, the employer must allow the employee to take two hours of leave.  Here, the employer may charge only two hours of FMLA leave against the employee's allotment.

Is This Rule Short Lived?

Now that I have explained the current rules with respect to accounting for paid leave and FMLA leave, the DOL is proposing that these rules change!  In its recent Notice of Proposed Rulemaking, the DOL has proposed that "an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave." Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.  If adopted, employees only would be charged FMLA leave for the period in which they need leave (e.g., two hours of FMLA leave for a two-hour medical appointment).  The Society for Human Resource Management (SHRM) has commented on the proposed rule change (pdf) that are worth a read.  The DOL is unlikely to issue a final rule until later this year.

I would be interested in the employer community's feedback on this current regulation.  Does the current rule help your business?  Would a reversion (as DOL proposes) create operational problems?  I welcome your comments.

Public comments originally were due by April 16, 2012.  However, last week, the DOL announced that it is extending the due date for comments to April 30.  We strongly encourage you to make your voice heard about these proposed regulations.

The proposed regulations also comment on the DOL's model FMLA forms as well as an employer's obligations under the Genetic Information Non-Discrimination Act (GINA).  So, read on...

Military Family Leave

Caregiver Leave

Under the National Defense Authorization Act of 2010, eligible employees can take up to 26 weeks of FMLA leave ("caregiver leave") in a single 12-month period to care for a covered service member or veteran with a serious injury or illness.  Under the NDAA and the proposed regulations, caregiver leave now can be taken up to five years after the service member leaves the military and for an injury or illness that results from a condition that predates the individual's active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Interestingly, the DOL is proposing that caregiver medical certification also may be completed by health care providers who are not affiliated with the military or Veterans Administration.  The same would apply to second and third opinions, so long as the initial certification was conducted by a HCP not affiliated with the military or Vets Administrations.  Under the current regulations, second and third opinions are not allowed for caregiver leave.  The DOL has specifically sought feedback on this issue, suggesting that it is open to even further changes to the proposed rule.

Exigency Leave

The NDAA and the proposed regulations also allow employees to take up to 12 weeks of FMLA leave for a "qualifying exigency" due to a family member's call to active duty in a foreign country.  Qualifying exigencies naturally encompass a wide range of activities associated with a service member's deployment, such as attending to legal, financial, family, child care, school and other matters. 

Prior to the NDAA's enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  The latter group specifically was excluded in the original statute.  At that time, the DOL rationalized that the lives of regular service members were not disrupted in the same manner as Reserve and National Guard members; hence, no exigency leave for "regular" freedom fighters.  However, the NDAA and proposed regulations reverse that position and now make clear: FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members.

Finally, the proposed regulations seek to expand from five to 15 days the amount of FMLA leave an employee can take to be reunited with a service member during "rest and recuperation" periods.

Airline Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA) ensures that more employees are eligible for FMLA leave.  Enacted in 2009, AFCTCA closed a loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave.  Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek. 

AFCTCA applies the same concept to airline flight crews.  In short, the Act provides that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the proposed regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.  This calculation would not include personal commute time, or time spent on vacation, medical or sick leave.

The rules proposed by the DOL provide specific instruction on how to implement this technical correction and apply the standards for flight crew benefits.

Calculation of Increments of FMLA Leave

Smallest Increments of Leave

In an interesting add on, the DOL also proposes to change the manner in which employers calculate increments of leave.  Before the regulations were changed in January 2009, employers were required to track intermittent or reduced schedule FMLA leave in the smallest increments used by their payroll systems to account for such leave, so long as it was one hour or less.  Thus, if an employer tracked employee time worked in 6-minute increments, the FMLA regulations required employers to also track FMLA leave in the same manner. 

In a move that was heralded at the time by the employer community, the DOL amended the regulations in 2009 to allow employers to track FMLA leave time in the same manner they track other forms of leave.  For instance, if the employer required employees to exhaust sick or vacation leave in one-hour increments, they also could require employees to exhaust FMLA leave in one-hour increments so long as the employee wished to use paid leave for the absence.

In short, the DOL proposes that we revert back to the pre-2009 regulations, reasoning that "an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave."  Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.

Physical Impossibility Provisions

Finally, the proposed regulations also seek to roll back a 2009 regulatory change that allowed employers to delay reinstatement where it is physically impossible for the employee to return to his or her job in the middle of their shift.  For example, if a flight attendant required two hours of intermittent leave because of a migraine headache, but also missed his scheduled flight as a result, the airline could delay returning him to work on that day because it was physically impossible for him to join his flight (since it already took off!).  As a result, the employer could designate a larger block of time as FMLA leave in that instance.

Not any more.  According to the DOL's FAQs on the proposed rules, the DOL “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift.”  Therefore, the proposed rule would apply the physical impossibility provision "only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave."

An Employer's GINA Obligations

The DOL also proposes adding a standard record keeping provision that would confirm employers' obligations to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).  The DOL reminds employers that, "to the extent that records and documents created for FMLA purposes contain 'family medical history' or 'genetic information' as defined in GINA, employers must maintain such records in accordance with [GINA's] confidentiality requirements." 

Oddly, the DOL does not propose an obligation on employers to include any language on GINA protections within the medical certification form.  For a quick review of best practices in doing so, see our post from earlier this month on the issue. 

The DOL's FMLA Forms are gone too? 

Sniff, sniff.  The DOL also intends to whack from the Appendices all of the required FMLA model forms and notices.  Why?  We haven't a clue, since we know the federal government's fondness for paper.  If the rule is approved, these forms and notices would only be available on the DOL's wage and hour website. 

Insights for Employers

1. First, take a deep breath and digest.  Nothing is final just yet!  We now have 60 days (from the time these proposed rules are published in the Federal Register, which is any moment now) to comment on the proposed regulations.  When the proposed rules are officially published, we will be able to submit comments here.  
2. In addition to the newly proposed regulations (see link above), take a minute to review the DOL's FAQs and Fact Sheet #1 and Fact Sheet #2 on the proposed regulations.
3. After a deep breath (see No. 1 above), bombard your employment attorney with all kinds  of exceedingly appropriate questions: Will we need to change our FMLA policy and forms? (Yes!)  Will we need to train our managers on these changes? (Yes!) Will the FMLA continue to be an administrative nightmare? (Yes!)  But will we still live to see tomorrow?  (An unreserved Yes!)

More Insights for Employers to follow soon...after a short nap.

According to the web reports, the new rules will allow leave for family members when a servicemember is called to duty on short notice and "will help military families who require time off to care for service members who are injured or called to active duty."

We will post updates as information becomes available.

In 2011, our most popular blog entries involved two general topics: 1) employers' best practices for FMLA administration; and 2) leave as a reasonable accommodation under the ADA when FMLA leave ends.  We share these posts again below, since we believe the guidance is valuable as we enter a new year. 

The Best of 2011

In 2011, two blog posts highlighted practical steps employers should take to maximize the efficiency of their FMLA leave administration.  Updating your FMLA policy and forms, using the medical certification process to your advantage, enforcing call-in policies...and much more below.

Policies, Practices and More: An FMLA "To Do" List for 2011

Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

In August and September 2011, about 900 attendees attended my webinar with the EEOC Regional Attorney John Hendrickson regarding "Leave" as a reasonable accommodation under the ADA.  My takeaways from that webinar proved to be popular as well, and employers kept the questions coming. 

What's in Store for FMLA in 2012?

The DOL has been relatively quiet on the FMLA front.  Some time ago, it intimated that it would conduct a survey in 2011 to "provide insight into how families use leave," but we heard nothing further.  Some (including me) wondered at the time whether this survey would signal even more regulatory change for the FMLA.  At this point, however, we are left guessing as to whether the DOL will even update its FMLA forms to include recommended changes such as the GINA disclaimer and the amended definition of "exigency leave" for military family leave.  Days ago, though, the DOL did publish this handy dandy guidance on FMLA retaliation, which told us what we should already know -- Don't retaliate against employees who take FMLA leave.

As we move into 2012, the EEOC (as opposed to DOL) seems to be grabbing the headlines on employee leave of absence issues, as it continues its war on automatic termination provisions and the use of leave as a reasonable accommodation under the ADA.  (See my post later this month on this topic.)  This year, we are likely to witness even more EEOC settlements in this area.  More importantly, the employer community eagerly awaits whether the EEOC will issue further guidance on "leave" as a reasonable accommodation, as it forecasted at its June 2011 hearing on this subject.  Will it give us the guidance we need to reduce liability and bring some predictability on this subject? 

In the meantime, we soldier on.  We update FMLA policies and forms.  We change our FMLA leave year so it is the most adventageous for our operations.  We update and communicate our call-in policies so all employees understand their responsibilities.  We clean up job descriptions so they are useful in the context of both the FMLA and ADA.  We create call-in questionnaires and effective medical certification procedures so we can better combat FMLA abuse.  (Click here for one of our more popular articles in 2011 on fighting FMLA abuse.)  We try to avoid an ever-growing list of FMLA class actions.  We train our supervisors and HR professionals so they are in the best position to administer the FMLA.

May your 2012 be an FMLA worry-free year.

Finally...a Thank You, Again!

As we start out 2012, we give thanks to you!  Because of our readers and your votes, we were voted the No. 3 Labor and Employment blog in 2011 by the ABA Journal and the No. 2 L&E blog of 2011 by LexisNexis.  We look forward to communicating with you about all things FMLA in the year ahead.  Keep the questions coming!

Shortly before the Thanksgiving holiday, the Obama administration's "Middle Class Task Force" announced a new program in which the U.S. Department of Labor will partner with the American Bar Association to refer complaints under the FMLA and federal wage and hour laws to private plaintiffs' attorneys. Here is an excerpt from the ABA's press release:

The workers’ rights component will begin a first-of-its kind partnership between a federal agency — the Department of Labor — and the private bar, the ABA. In a typical year, the Department of Labor’s Wage and Hour Division receives more than 35,000 employment-related legal complaints. In order to ensure that as many workers as possible have access to legal assistance, the Department of Labor and the ABA are establishing an attorney-referral system. Workers will be referred to lawyers experienced in the Family and Medical Leave Act and Fair Labor Standards Act who will handle requests from workers nationwide through a network of state and local ABA-approved lawyer referral services.

“Our nation’s workers deserve full and fair compensation, and this Administration is committed to ensuring that they receive it,” said U.S. Secretary of Labor Hilda L. Solis. “Today’s announced collaboration with the ABA streamlines worker access to additional legal resources and builds on the Department of Labor’s continued efforts to ensure that employers comply with America’s labor laws.”

While this initiative will presumably benefit some middle-class workers, the obvious winners here are plaintiffs' lawyers. Employers, on the other hand, may be feeling left out of the holiday cheer. Our prescription: another glass of egg nog, followed by a careful review of your FMLA and wage and hour policies and practices for the new year.