New FMLA rules answer and create questions.

In 1993, President Bill Clinton signed into law the Family Medical Leave Act, which provides job protection, in the form of up to 12 weeks of unpaid leave, to eligible employees related to the employee's own serious health condition; the serious health condition of parents, spouses or children; or the birth or placement of a child. In January, Congress passed, and President Bush signed into law, the National Defense Authorization Act, resulting in the first changes to the FMLA. The act carves out special protections for members of the armed services and their families.

In February, the Department of Labor issued long-promised (and many would argue overdue) proposed new regulations regarding the FMLA. These regulations, if enacted, would substantially revamp the current FMLA regulations, making numerous substantive and editorial changes and reorganizing many key topics. This article will seek to explore some of the key topics contained in the proposed regulations.

New military family leave provisions

Employers should welcome some of the proposed changes. Although covered employers should not rush to action and revamp their FMLA policies before the final regulations are issued, they should become familiar with the proposal. At a minimum, employers should display the new poster insert regarding military family leave found on the Labor Department's Web site: www.dol.gov/esa/regs/compliance/posters/fmla.htm.

The act provides two specific protections for members of the armed forces and their families:

New qualifying reason for leave: Eligible employees are entitled to up to 12 weeks of leave because of "any qualifying exigency" arising from the fact that a spouse, son, daughter or parent of the employee is on active duty or has been notified of an impending call to active duty in support of a contingency operation. This provision requires the secretary of labor to issue regulations defining "any qualifying exigency." To date, that definition does not exist, and this provision has not taken effect. In the interim, employers are encouraged to provide this type of leave to qualifying employees.

New leave entitlement: An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty while on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member. This provision became effective immediately upon enactment. It is important to note that at up to 26 weeks of leave, this military caregiver leave is significantly more generous than the 12 weeks of leave offered for nonmilitary caregivers.

Proposed regulations for nonmilitary FMLA leave

In addition to the military-family-leave matters addressed by the NDAA, the proposed regulations address changes to nonmilitary family leave. Following are highlights of the proposed changes:

Reorganizing the regulations: The old regulations used a Q&A format that resulted in provisions on a single topic (for example, substance abuse) being scattered in different places in the regulations. The proposed regulations are organized by topic.

New forms: The Labor Department has revamped the notices provided to employees requesting FMLA leave and the medical-certification form. Among other things, the proposed regulations provide that a healthcare provider can include the employee's (or family member's) diagnosis on the medical certification.

The proposed regulations would also allow an employer to provide a listing of the essential functions of the employee's job with the medical certification form and to ask the health-care provider to indicate which specific functions the employee cannot perform. The functions must exist at the time the employee's leave would begin. Therefore, employers should ensure they have accurate, updated job descriptions for all positions and should complete an annual audit of them.

Designation of leave by employer: Existing regulations require an employer to designate leave as FMLA-cov-ered within two business days of the request or of the time that the employer receives enough information to know that it is FMLA-qualifying. Under the proposed regulations, this deadline would be five business days.

Return of medical certification/approval of leave: Under the existing deadlines, an employee has 15 calendar days to return a completed medical certification supporting the need to take FMLA leave. Often, employees failed to return it within the 15 days, and employers were hesitant to exercise their right not to designate the time as FMLA-protected. Rather, they would give employees additional weeks or sometimes months to return the certification. The proposed regulations keep the initial 15-day period but clarify the employer's obligations if an employee fails to return the certification or provides an incomplete certification. The proposed regulations require an employer to allow an employee seven calendar days to cure any defects with the certification after the first 15-day period is over.

Uniformed Services Employment and Reemployment Rights Act provisions: The proposed regulations make clear that time spent away from work by reservists or those on National Guard duty should be counted toward their 12-month, 1,250-hour FMLA eligibility requirement

Perfect-attendance bonuses: Under the old regulations, if a company gave employees an attendance bonus, those who took FMLA-covered leave during that time period would not be disqualified from getting the bonus. The proposed regulations provide that employers may deny attendance and other bonuses to employees who were out for FMLA-covered reasons. However, there is one big caveat. If the employer pays attendance bonuses to employees absent for other reasons (including vacation or furloughs), then the employer must pay the bonus to employees absent because of FMLA leave.

Health Insurance Portability and Accountability Act clarification: The proposed rules provide guidance on the interaction of HIPAA privacy regulations and the FMLA and also provide that an employee seeking "serious health condition" leave who refuses to provide a HIPAA authorization to his health-care provider may be denied leave.

Fitness-for-duly/return-to-work certifications: Under existing law, an employer's hands are tied if he or she questions whether an employee is able to return to work safely. The proposed regulations allow the employer to require a certification that addresses the employee's ability to perform the essential functions of the job (as long as those functions were provided to the employee with the original FMLA notice) and the employer is permitted to communicate directly with the health-care provider to "clarify" or "authenticate" the certification.

While the proposed regulations would offer some clarifications, employers are encouraged to review each FMLA request on a case-by-casc basis to determine employee eligibility and whether the event qualifies for leave. Employers should know their obligations under the law, but be aware that they also have rights and should exercise them, consistently and using good business judgment. As more parents enter the work force, soldiers return from overseas and baby boomers age, FMLA will continue to be an important part of day-to-day business operations.

Employers should not rush to revamp their FMLA policies before the new rules are final.

Kristine M. Sims

Kristine M. Sims is a labor and employment lawyer in the Winston-Salem office of Constangy, Brooks & Smith LLC. She practices in all areas of employment litigation and prevention. Sims also is a member of the firm's Affirmative Action Practice Group. A graduate of the University of Virginia, she earned her law degree from the University of Richmond, where she was named the ABA/BNA outstanding graduate in labor and employment law.

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