New certifications may help employers. Although the vast majority of the final regulations mirror what DOL had already proposed, now employers have a due date and little time to prepare to comply. Because some 7 million employees take leave under the law each year—and an additional 139,000 are expected to use the new military leave provisions—becoming familiar with the changes is urgent. Here’s one change: In the past, only a health-care provider, not an employer, could contact an employee’s doctor to discuss the employee’s medical certification. Now, contact between an HR manager or leave coordinator and an employee’s doctor is permitted—but only within narrow limits.

The doctor can be asked to verify that he or she actually signed the certification (“authentication”) or questioned about his or her handwriting (“clarification”). Further, although HR, a leave manager, or another “management official” can contact the physician, the employee’s immediate supervisor is expressly barred from doing so. And, it’s good news that the medical certification form has been substantially revised. Where in the past a doctor faced a series of blank boxes (many of which he or she probably left blank), Susan L. Schoenfeld, J.D., BLR’s specialist in FMLA, describes the new form this way: “It creates the equivalent of a script for dialog between provider and employer. The certification leads a physician through nearly every step he or she might need to answer.”

Another certification change is that one form has now become two: In the past, an employee used the same form to certify his or her own serious health condition and to certify the condition of a family member needing care. Since the purposes are quite different, DOL has now created a form specifically for employees applying to be caregivers for a child or other family member. The final regs also permit employers to require an employee returning from FMLA leave to provide a fitness-for-duty certification that addresses his or her ability to perform the essential functions of the job. To facilitate that process, the employer must provide to the returning employee’s doctor with a list of those essential functions.

There are also changes to FMLA’s notice provisions. One responds to a controversial legal ruling in a case known as Ragsdale: the regs specify that an employee is not entitled to FMLA leave only because the employer failed to designate the absence properly and promptly—the opposite of the ruling. Further, leave can be retroactively declared as qualifying for FMLA and can run concurrently with any kind of paid leave the employee has accrued.

Some Changes Come As Welcome News

Schoenfeld points out that DOL made a very significant change in the final regs from its earlier proposal. In trying to manage the bear that is intermittent leave under the law, employers got a break: DOL now says that leave can be granted in amounts an employer uses for other types of leave rather than in the smallest increment of its timekeeping system—but no more than an hour. Schoenfeld predicts that going forward, employers will align all their systems with the 1-hour period.

Other changes in employers’ favor include these: (1) When an employee can’t give 30 days’ advance notice of the need for leave, he or she should let the employer know the day he or she learns of the need, or the next day. (2) An employee who can’t foresee the need must comply with the employer’s usual and customary notice requirements and call-in procedures that apply to other absences. (3) The employee will need to explain, if asked, why the leave couldn’t be foreseen. (4) The new regs add some guidance to the definition of a serious health condition, saying that an employee who is incapacitated for at least 3 consecutive days and sees a healthcare provider twice must make the visits within a 30-day period, with the first one occurring within 7 days of the initial incapacity. And, “periodic” doctor visits for a chronic condition means at least two per year.

If an employee can’t resume his or her former job immediately on return and is given “light duty” for a period, the time spent in that duty is not counted against FMLA leave. And, the employee is entitled to restoration of the former job when light duty is no longer needed. That’s an important change, because some courts in the past have counted light duty against the employee’s leave allotment.

Says Schoenfeld, “Employers will need to devote time and resources to understanding and changing their FMLA leave administration programs, and they don’t have a lot of time. Because a number of provisions require that FMLA be treated in the same manner as other types of leave, it would be wise for employers to centralize the management of all leave programs. And the new family military leave requirements mean all-new policies. Smart employers are already working to understand the numerous changes to the FMLA rules and reviewing and revising all existing leave policies. But I believe that once employers become familiar with the new rules and how to comply with them, managing FMLA should be easier.”

Don’t Forget Leave for Military Families

Wrapped into the final regulations revising the original 1993 law are rules interpreting new FMLA provisions for families with a member in the uniformed services. Schoenfeld points out that one of those was effective in January 2008, when the enabling legislation was signed, and there are now finally regulations. That provision allows up to 26 weeks off for an employee to care for an ill or injured family member in the military.

• Remember that not many service members will qualify for caregiving, because they must be seriously injured or ill enough that they cannot perform their duties—but not so seriously that they have been discharged from the military as disabled. In general, the procedures for family military leave and “regular” FMLA will be the same.
• Note that although caregiver leave allows 26 weeks, that same employee can take only 12 weeks for any other FMLA-qualifying reason. Employers cannot run the two types of leave concurrently and must designate the purpose of the leave as either military caregiver or caring for a family member.
• There are also provisions for leave in what the 2008 law termed “qualifying exigencies.” This provision applies only to the families of National Guard or Reserves individuals. Schoenfeld offers two examples that would clearly qualify under the regulations: An employee whose daughter is deployed could request leave to care for her daughter’s children in emergencies; or an employee with a family member called up could be given leave to attend a military family briefing for deployment.
• Another qualifying exigency: An employee’s family member is given a break of a week or two, either at home or in a distant location. The employee can be granted leave to spend the break with the family member.
• In general, the new regulations define a qualifying exigency as (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities where the employer and the employee agree to the leave.