News
New FMLA Regulations Go Into Effect January 16, 2009
December, 19 2008
Update
The Department of Labor has now issued the new forms and poster for use in administering FMLA under the new regulations discussed below. Please click here for more information, or you can link to the forms from the discussion below.
New Regulations
The Department of Labor (DOL) issued new regulations on November 17, 2008 which revise several existing regulations and also implement the military family leave provisions passed by Congress in January 2008. In addition, the DOL has issued a new poster for employers to post, added a form notifying employees of their rights when they request FMLA leave, and added new forms to deal with the various types of leave. The new regulations go into effect January 16, 2009. The important highlights of the regulations are discussed below, as are the new forms.
Changes to Old Regulations
Light Duty
Under the previous regulations, an employer who offered an employee voluntary light duty following an FMLA absence could count the time spent on light duty against the employee’s 12-week right to restoration to his job. The new regulations eliminate this practice. Under the new rules, time spent on light duty following an FMLA absence does not count against the employee’s 12-weeks of FMLA leave. However, if the employee is not able to return to full duty before the end of his FMLA leave year (12 months from the date the employee’s leave began for most employers), his right to return to his regular job ends at that time. The previous regulation that prohibited employers from requiring an employee to take light duty remains in effect.
This will particularly impact employers who offer light duty to employees recovering from workers’ compensation injuries. Workers’ compensation insurance carriers often encourage employers to offer light duty because the carrier does not have to pay lost wage benefits, or pays less benefits, if the employee accepts. And if the employee does not accept, the carrier does not have to pay the lost wage benefits. Offering light duty may now significantly extend the period of time an injured employee has a right to restoration to his job, and employers should carefully consider whether to offer light duty.
Definition of Serious Health Condition
The previous regulations provided that, among other things, a serious health condition involves incapacity of more than 3 days, plus 2 visits to a healthcare provider. This rule remains, but is now clarified to provide that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within 7 days of the first day of incapacity. Alternatively, an employee may meet the serious health condition requirement if he has more than 3 days of incapacity plus a regimen of continuing treatment. Once again, the final rule clarifies that the first visit to the healthcare provider must take place within 7 days of the first day of incapacity.
Substitution of Paid Leave
Although FMLA gives employees a right only to unpaid leave, employers may require employees to use paid leave balances concurrently with FMLA leave (which is what is meant by “substitution of paid leave”). Previously, the regulations had differing requirements for substitution of paid leave depending on whether the leave was vacation leave or sick leave or family leave. The new rules treat all types of leave the same.
The most significant result of this change is that an employee must now comply with an employer’s requirements for use of paid leave in order to receive the pay regardless of the type of leave used. If the employee fails to comply with the employer’s requirements, the leave must still be granted, but may be unpaid. Many employers prefer that the employee use up paid leave balances while on FMLA leave. To that end, the regulations permit an employer to waive the employee’s non-compliance and designate the leave as paid.
Employee Notice Obligations
An employee previously was allowed to notify his employer of the need for FMLA leave up to two days after the absence even if the employee knew sooner of the need and could have provided notice more quickly. The new rules provide that, for unforeseen FMLA-qualifying absences, the employee must follow the employer’s normal notification procedures to report the absence unless there are special circumstances. For example, if an employer normally requires an employee to call in to report unforeseen absences, that requirement also may be enforced in FMLA-qualifying situations, as long as there are not special circumstances that kept the employee from following the procedure.
Employer Notice Obligations
Previously the regulations provided employers only 2 business days to provide notices to employees regarding eligibility for leave, designation of leave, and the results of second and third opinions by medical providers, among others. The new rules allow 5 business days.
Fitness-for-Duty Certifications
Some employers require an employee returning to work from an absence to provide a fitness for duty certification that he is able to resume working. Certifications were allowed under the old rules, but the new regulations clarify two points. The regulations now specifically provide that the employer may require the certification to address the employee’s ability to do the essential functions of the job. The regulations also now specifically allow a certification to be required where safety requirements dictate that a certification is needed before an employee returns to work from intermittent leave.
Medical Certification
The new rules continue to allow an employer representative to contact an employee’s healthcare provider when clarification of a medical certification is needed. Now, however, the employer representative who contacts the employee’s healthcare provider must be a healthcare provider (i.e., “we’ll have our doctor call your doctor”), a human resources official, an employee in charge of administering leave, or a management official. The employee’s immediate supervisor may not contact the employee’s healthcare provider for clarification under any circumstances. Further, the employer must first give the employee an opportunity to have the certification clarified (discussed in the next paragraph) before resorting to contacting the employee’s healthcare provider.
In an effort to improve communication between employers, employees and healthcare providers, the new rules require employers to use separate certification forms, one for when the serious health condition is the employee’s, and another when it is a family member’s. Further, when an employer believes a certification is incomplete, it now must specify in writing what information is missing and give the employee 7 calendar days to provide the additional information.
The DOL has also made some changes to the rules regarding when an employer may ask for recertification of a serious health condition. The new regulations confirm that, for medical conditions lasting longer than a year, employers may ask for a new certification with each new 12-month FMLA leave year. Previously, the rules also limited employer recertification requests in connection with an absence to every 30 days, or if the certification specified a longer duration for the condition, the employer could not ask for recertification until the duration had passed. The rules were not clear, however, about how that rule applied when the duration of the condition was lifetime or unlimited. Under the new rules, in most cases where the duration is unlimited or lifetime, employers may request recertification at least every 6 months in connection with an absence. The 30 day rule still applies where no duration is specified.
Perfect Attendance Awards
In general, an employer may not discriminate against employees who take FMLA leave. The new rules clarify that employers who offer awards for perfect attendance do not have to disregard FMLA leave when making such awards, so long as the employer does not disregard any other type of non-FMLA leave.
New Military Leaves
Congress enacted two new types of FMLA leave in early 2008. One is leave for family members of military service members who are injured in the line of duty. The other is leave for qualifying exigencies relating to active duty or a call to active duty.
Military Caregiver Leave
Previously, an employee would have been eligible for up to 12 weeks of FMLA leave to care for an injured service member who is the employee’s spouse, parent or child. The new law and regulations expand the entitlement in two important ways. First, leave is not limited to an employee who is a spouse, parent or child but also includes the injured service member’s next of kin. “Next of kin” in this context means the nearest blood relative who is not a spouse, parent or child. Blood relatives who have legal custody of the service member top the list, followed by siblings, grandparents, aunts and uncles, and first cousins. The service member may also designate in writing a relative as his next of kin.
The second major expansion is to increase the amount of leave that may be taken from 12 weeks to 26 weeks. The 26 weeks is limited to a single 12-month period but the an employee may take multiple “single 12-month periods” to care for different service members, or to care for subsequent injuries to the same service member. The 26 weeks is also cumulative with other types of FMLA leave. Thus, if an employee has already taken 8 weeks of leave for another qualifying reason, he still has 18 weeks of military caregiver leave. Conversely, if he takes 8 weeks of military caregiver leave, he still has 12 weeks of other FMLA leave remaining. Please note that, if an employee exhausts the one-time military caregiver leave, he may still be eligible for up to 12 weeks of FMLA family leave in the future to care for the service member if the service member is his spouse, parent or child.
Qualifying Exigency Leave
The second new type of military family leave enacted by Congress is leave for qualifying exigencies due to active duty or call to active duty of a spouse, parent or child of the employee. Unlike the other new type of military family leave, this leave is limited to 12 weeks in a 12-month period like most other FMLA leaves. Further, covered service members in this case are limited to members of the National Guard or Reserves of the U.S. Armed Forces. Members of the regular armed forces are not included.
Congress left it to the DOL to define what constitutes a qualifying exigency. The DOL’s new rules create 8 categories of exigencies that will qualify. Those categories are:
(1) short-notice deployments – i.e., 7 days or less notice; and this leave is limited to 7 days from notice of the deployment;
(2) military events and related activities – e.g., official ceremonies or programs, or family support or informational briefings;
(3) childcare and school activities – covering a broad range of activities necessitated by the active duty or call to active duty, but not including regular or routine childcare by the employee;
(4) financial and legal arrangements – includes updating financial and legal affairs prior to deployment and representing the service member in obtaining or appealing military benefits;
(5) counseling – covers counseling provided by someone other than a healthcare provider (which would be covered by another FMLA provision) as long as the need arises out of the active duty or call to active duty;
(6) rest and recuperation – allows the employee to spend up to 5 days per R&R period with a service member who is on R&R leave;
(7) post-deployment activities – covers attending arrival ceremonies and reintegration activities and briefings for a period of up to 90 days following the end of active duty status, and also covers issues arising from the death of a service member, including meeting the body and making funeral arrangements; and
(8) additional activities – if the employer and employee agree that any additional activities will be covered and agree on the timing and duration of the leave, those activities will be counted, too.
New Forms
Along with the regulations, the DOL introduced several new forms for employers to use. Some are mandatory and others, like the certification forms, are optional. Employers should note, however, that whether or not they use the optional forms, they may not ask for more or different information from what is on the DOL form.
Poster
Employers are required to post a new poster advising employees of their rights under FMLA. Under previous rules, employers with handbooks discussing leave also had to provide information on FMLA. Now, employers must go further and provide the information that is in the new poster – either in a handbooks or by giving a copy to every new employees at the time of hire.
To see a copy of the notice that was included with the new regulations, click here. We will provide a link to the new notice on the DOL’s website as soon as one is posted.
Notice of Eligibility and Rights and Responsibilities
The DOL’s new regulations contemplate that the use of new (and more) forms will improve communication and simplify the administration of FMLA leave. The first form that employers will use when an employee requests or needs FMLA leave is the Notice of Eligibility and Rights and Responsibilities (“Notice of Eligibility” for short). This form has two primary functions. First, it tells employees whether they are eligible for FMLA (not whether their leave qualifies as FMLA leave; that comes later). Second, it informs employees of various rights and responsibilities they have, including the employee’s obligation to provide the employer with medical certification of the need for leave. Employers who previously used the DOL’s Employer Response to Employee Request for Family or Medical Leave will recognize some of the material in this form.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Certification Forms
If the employer requires certification of the need for leave, the employer must provide the employee one of the four new certification forms. As was the case under the old rules, the employer must give the employee at least 15 days to return the completed certification. If an employer believes the certification is incomplete, the employer may request clarification within 7 days, as long as the employer specifies in writing what is missing.
Employee’s Own Serious Health Condition. If the employee needs leave for his own condition, the employer will use the aptly titled Certification of Health Care Provider for Employee’s Serious Health Condition, which DOL has designated as form WH-380-E. Section I of the form must be completed by the employer, and now provides a place for the employer to list the essential functions of the job. This facilitates the healthcare provider’s giving an opinion of whether the employee can or cannot do any of those functions. The employer may also attach a job description that accurately describes the essential functions of the job.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Family Member’s Serious Health Condition. If the employee’s need for leave is to care for a family member, a separate form is used that is called Certification of Health Care Provider for Family Member’s Serious Health Condition (form WH-380-F). The employer is required only to provide a contact name and information; the remainder of the form is to be filled out by the employee and healthcare provider.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Military Exigency Leave. When an employee requests leave for exigent circumstances connected with active duty or a call to active duty, the employer may require the employee to complete a certification form that provides information necessary to verify the need for leave. The form is designated WH-384 by the DOL and is called Certification of Qualifying Exigency for Military Leave. Unlike the medical certification forms, the employee provides most of the information on the form. The form also requests the employee to attach copies of military orders and other documents supporting the leave, if they are available. An employer may require that the form include either a copy of the orders or some other documentation from the military of the active duty, unless the employee has already provided it.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Service Member Family Leave. An employee requesting military family leave to care for a service member injured in the line of duty may be required to submit a Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave (form WH-385). The form must be filled out by the employee and/or the covered service member and the covered service member’s healthcare provider. Unlike other FMLA leaves for a serious health condition, the certification in this case must be by a healthcare provider who is either (1) a U.S. Department of Defense (DOD) healthcare provider, (2) a U.S. Department of Veterans Affairs healthcare provider, (3) a DOD TRICARE authorized network private healthcare provider, or (4) a DOD TRICARE authorized non-network healthcare provider.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Designation Notice
Once the employer has received the applicable, completed certification form from the employee, it must notify the employee what action it is taking. In most cases, the employer will be notifying the employee that the leave is approved, how many hours, days, or weeks will be counted against the FMLA leave entitlement, and advising of certain other requirements like whether the employee must substitute paid leave and whether he must provide a fitness-for-duty certification.
The form also provides an area for the employer to notify the employee that leave cannot be approved because the certification is incomplete (and what information is missing) or that the employer has decided to seek a second opinion. If the FMLA leave will not be approved, there are check boxes for that, as well.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Employers must be ready to implement the new FMLA rules by January 16, 2009. If you would like assistance integrating these new rules into your existing FMLA policies and procedures, or if you have any questions about your organization’s responsibilities under the FMLA, please contact us.
The Department of Labor has now issued the new forms and poster for use in administering FMLA under the new regulations discussed below. Please click here for more information, or you can link to the forms from the discussion below.
New Regulations
The Department of Labor (DOL) issued new regulations on November 17, 2008 which revise several existing regulations and also implement the military family leave provisions passed by Congress in January 2008. In addition, the DOL has issued a new poster for employers to post, added a form notifying employees of their rights when they request FMLA leave, and added new forms to deal with the various types of leave. The new regulations go into effect January 16, 2009. The important highlights of the regulations are discussed below, as are the new forms.
Changes to Old Regulations
Light Duty
Under the previous regulations, an employer who offered an employee voluntary light duty following an FMLA absence could count the time spent on light duty against the employee’s 12-week right to restoration to his job. The new regulations eliminate this practice. Under the new rules, time spent on light duty following an FMLA absence does not count against the employee’s 12-weeks of FMLA leave. However, if the employee is not able to return to full duty before the end of his FMLA leave year (12 months from the date the employee’s leave began for most employers), his right to return to his regular job ends at that time. The previous regulation that prohibited employers from requiring an employee to take light duty remains in effect.
This will particularly impact employers who offer light duty to employees recovering from workers’ compensation injuries. Workers’ compensation insurance carriers often encourage employers to offer light duty because the carrier does not have to pay lost wage benefits, or pays less benefits, if the employee accepts. And if the employee does not accept, the carrier does not have to pay the lost wage benefits. Offering light duty may now significantly extend the period of time an injured employee has a right to restoration to his job, and employers should carefully consider whether to offer light duty.
Definition of Serious Health Condition
The previous regulations provided that, among other things, a serious health condition involves incapacity of more than 3 days, plus 2 visits to a healthcare provider. This rule remains, but is now clarified to provide that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within 7 days of the first day of incapacity. Alternatively, an employee may meet the serious health condition requirement if he has more than 3 days of incapacity plus a regimen of continuing treatment. Once again, the final rule clarifies that the first visit to the healthcare provider must take place within 7 days of the first day of incapacity.
Substitution of Paid Leave
Although FMLA gives employees a right only to unpaid leave, employers may require employees to use paid leave balances concurrently with FMLA leave (which is what is meant by “substitution of paid leave”). Previously, the regulations had differing requirements for substitution of paid leave depending on whether the leave was vacation leave or sick leave or family leave. The new rules treat all types of leave the same.
The most significant result of this change is that an employee must now comply with an employer’s requirements for use of paid leave in order to receive the pay regardless of the type of leave used. If the employee fails to comply with the employer’s requirements, the leave must still be granted, but may be unpaid. Many employers prefer that the employee use up paid leave balances while on FMLA leave. To that end, the regulations permit an employer to waive the employee’s non-compliance and designate the leave as paid.
Employee Notice Obligations
An employee previously was allowed to notify his employer of the need for FMLA leave up to two days after the absence even if the employee knew sooner of the need and could have provided notice more quickly. The new rules provide that, for unforeseen FMLA-qualifying absences, the employee must follow the employer’s normal notification procedures to report the absence unless there are special circumstances. For example, if an employer normally requires an employee to call in to report unforeseen absences, that requirement also may be enforced in FMLA-qualifying situations, as long as there are not special circumstances that kept the employee from following the procedure.
Employer Notice Obligations
Previously the regulations provided employers only 2 business days to provide notices to employees regarding eligibility for leave, designation of leave, and the results of second and third opinions by medical providers, among others. The new rules allow 5 business days.
Fitness-for-Duty Certifications
Some employers require an employee returning to work from an absence to provide a fitness for duty certification that he is able to resume working. Certifications were allowed under the old rules, but the new regulations clarify two points. The regulations now specifically provide that the employer may require the certification to address the employee’s ability to do the essential functions of the job. The regulations also now specifically allow a certification to be required where safety requirements dictate that a certification is needed before an employee returns to work from intermittent leave.
Medical Certification
The new rules continue to allow an employer representative to contact an employee’s healthcare provider when clarification of a medical certification is needed. Now, however, the employer representative who contacts the employee’s healthcare provider must be a healthcare provider (i.e., “we’ll have our doctor call your doctor”), a human resources official, an employee in charge of administering leave, or a management official. The employee’s immediate supervisor may not contact the employee’s healthcare provider for clarification under any circumstances. Further, the employer must first give the employee an opportunity to have the certification clarified (discussed in the next paragraph) before resorting to contacting the employee’s healthcare provider.
In an effort to improve communication between employers, employees and healthcare providers, the new rules require employers to use separate certification forms, one for when the serious health condition is the employee’s, and another when it is a family member’s. Further, when an employer believes a certification is incomplete, it now must specify in writing what information is missing and give the employee 7 calendar days to provide the additional information.
The DOL has also made some changes to the rules regarding when an employer may ask for recertification of a serious health condition. The new regulations confirm that, for medical conditions lasting longer than a year, employers may ask for a new certification with each new 12-month FMLA leave year. Previously, the rules also limited employer recertification requests in connection with an absence to every 30 days, or if the certification specified a longer duration for the condition, the employer could not ask for recertification until the duration had passed. The rules were not clear, however, about how that rule applied when the duration of the condition was lifetime or unlimited. Under the new rules, in most cases where the duration is unlimited or lifetime, employers may request recertification at least every 6 months in connection with an absence. The 30 day rule still applies where no duration is specified.
Perfect Attendance Awards
In general, an employer may not discriminate against employees who take FMLA leave. The new rules clarify that employers who offer awards for perfect attendance do not have to disregard FMLA leave when making such awards, so long as the employer does not disregard any other type of non-FMLA leave.
New Military Leaves
Congress enacted two new types of FMLA leave in early 2008. One is leave for family members of military service members who are injured in the line of duty. The other is leave for qualifying exigencies relating to active duty or a call to active duty.
Military Caregiver Leave
Previously, an employee would have been eligible for up to 12 weeks of FMLA leave to care for an injured service member who is the employee’s spouse, parent or child. The new law and regulations expand the entitlement in two important ways. First, leave is not limited to an employee who is a spouse, parent or child but also includes the injured service member’s next of kin. “Next of kin” in this context means the nearest blood relative who is not a spouse, parent or child. Blood relatives who have legal custody of the service member top the list, followed by siblings, grandparents, aunts and uncles, and first cousins. The service member may also designate in writing a relative as his next of kin.
The second major expansion is to increase the amount of leave that may be taken from 12 weeks to 26 weeks. The 26 weeks is limited to a single 12-month period but the an employee may take multiple “single 12-month periods” to care for different service members, or to care for subsequent injuries to the same service member. The 26 weeks is also cumulative with other types of FMLA leave. Thus, if an employee has already taken 8 weeks of leave for another qualifying reason, he still has 18 weeks of military caregiver leave. Conversely, if he takes 8 weeks of military caregiver leave, he still has 12 weeks of other FMLA leave remaining. Please note that, if an employee exhausts the one-time military caregiver leave, he may still be eligible for up to 12 weeks of FMLA family leave in the future to care for the service member if the service member is his spouse, parent or child.
Qualifying Exigency Leave
The second new type of military family leave enacted by Congress is leave for qualifying exigencies due to active duty or call to active duty of a spouse, parent or child of the employee. Unlike the other new type of military family leave, this leave is limited to 12 weeks in a 12-month period like most other FMLA leaves. Further, covered service members in this case are limited to members of the National Guard or Reserves of the U.S. Armed Forces. Members of the regular armed forces are not included.
Congress left it to the DOL to define what constitutes a qualifying exigency. The DOL’s new rules create 8 categories of exigencies that will qualify. Those categories are:
(1) short-notice deployments – i.e., 7 days or less notice; and this leave is limited to 7 days from notice of the deployment;
(2) military events and related activities – e.g., official ceremonies or programs, or family support or informational briefings;
(3) childcare and school activities – covering a broad range of activities necessitated by the active duty or call to active duty, but not including regular or routine childcare by the employee;
(4) financial and legal arrangements – includes updating financial and legal affairs prior to deployment and representing the service member in obtaining or appealing military benefits;
(5) counseling – covers counseling provided by someone other than a healthcare provider (which would be covered by another FMLA provision) as long as the need arises out of the active duty or call to active duty;
(6) rest and recuperation – allows the employee to spend up to 5 days per R&R period with a service member who is on R&R leave;
(7) post-deployment activities – covers attending arrival ceremonies and reintegration activities and briefings for a period of up to 90 days following the end of active duty status, and also covers issues arising from the death of a service member, including meeting the body and making funeral arrangements; and
(8) additional activities – if the employer and employee agree that any additional activities will be covered and agree on the timing and duration of the leave, those activities will be counted, too.
New Forms
Along with the regulations, the DOL introduced several new forms for employers to use. Some are mandatory and others, like the certification forms, are optional. Employers should note, however, that whether or not they use the optional forms, they may not ask for more or different information from what is on the DOL form.
Poster
Employers are required to post a new poster advising employees of their rights under FMLA. Under previous rules, employers with handbooks discussing leave also had to provide information on FMLA. Now, employers must go further and provide the information that is in the new poster – either in a handbooks or by giving a copy to every new employees at the time of hire.
To see a copy of the notice that was included with the new regulations, click here. We will provide a link to the new notice on the DOL’s website as soon as one is posted.
Notice of Eligibility and Rights and Responsibilities
The DOL’s new regulations contemplate that the use of new (and more) forms will improve communication and simplify the administration of FMLA leave. The first form that employers will use when an employee requests or needs FMLA leave is the Notice of Eligibility and Rights and Responsibilities (“Notice of Eligibility” for short). This form has two primary functions. First, it tells employees whether they are eligible for FMLA (not whether their leave qualifies as FMLA leave; that comes later). Second, it informs employees of various rights and responsibilities they have, including the employee’s obligation to provide the employer with medical certification of the need for leave. Employers who previously used the DOL’s Employer Response to Employee Request for Family or Medical Leave will recognize some of the material in this form.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Certification Forms
If the employer requires certification of the need for leave, the employer must provide the employee one of the four new certification forms. As was the case under the old rules, the employer must give the employee at least 15 days to return the completed certification. If an employer believes the certification is incomplete, the employer may request clarification within 7 days, as long as the employer specifies in writing what is missing.
Employee’s Own Serious Health Condition. If the employee needs leave for his own condition, the employer will use the aptly titled Certification of Health Care Provider for Employee’s Serious Health Condition, which DOL has designated as form WH-380-E. Section I of the form must be completed by the employer, and now provides a place for the employer to list the essential functions of the job. This facilitates the healthcare provider’s giving an opinion of whether the employee can or cannot do any of those functions. The employer may also attach a job description that accurately describes the essential functions of the job.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Family Member’s Serious Health Condition. If the employee’s need for leave is to care for a family member, a separate form is used that is called Certification of Health Care Provider for Family Member’s Serious Health Condition (form WH-380-F). The employer is required only to provide a contact name and information; the remainder of the form is to be filled out by the employee and healthcare provider.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Military Exigency Leave. When an employee requests leave for exigent circumstances connected with active duty or a call to active duty, the employer may require the employee to complete a certification form that provides information necessary to verify the need for leave. The form is designated WH-384 by the DOL and is called Certification of Qualifying Exigency for Military Leave. Unlike the medical certification forms, the employee provides most of the information on the form. The form also requests the employee to attach copies of military orders and other documents supporting the leave, if they are available. An employer may require that the form include either a copy of the orders or some other documentation from the military of the active duty, unless the employee has already provided it.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Service Member Family Leave. An employee requesting military family leave to care for a service member injured in the line of duty may be required to submit a Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave (form WH-385). The form must be filled out by the employee and/or the covered service member and the covered service member’s healthcare provider. Unlike other FMLA leaves for a serious health condition, the certification in this case must be by a healthcare provider who is either (1) a U.S. Department of Defense (DOD) healthcare provider, (2) a U.S. Department of Veterans Affairs healthcare provider, (3) a DOD TRICARE authorized network private healthcare provider, or (4) a DOD TRICARE authorized non-network healthcare provider.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Designation Notice
Once the employer has received the applicable, completed certification form from the employee, it must notify the employee what action it is taking. In most cases, the employer will be notifying the employee that the leave is approved, how many hours, days, or weeks will be counted against the FMLA leave entitlement, and advising of certain other requirements like whether the employee must substitute paid leave and whether he must provide a fitness-for-duty certification.
The form also provides an area for the employer to notify the employee that leave cannot be approved because the certification is incomplete (and what information is missing) or that the employer has decided to seek a second opinion. If the FMLA leave will not be approved, there are check boxes for that, as well.
To see a copy of the form that was included with the new regulations, click here. We will provide a link to the new form on the DOL’s website as soon as one is posted.
Employers must be ready to implement the new FMLA rules by January 16, 2009. If you would like assistance integrating these new rules into your existing FMLA policies and procedures, or if you have any questions about your organization’s responsibilities under the FMLA, please contact us.
Gignilliat, Savitz & Bettis, LLP
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us