10 Resolutions for Your Family and Medical Leave Policies in 2009

Mark Diana

Your New Years’ resolutions this year should include a top to bottom review of your company’s family and medical leave policies to ensure they comply with the new federal Family and Medical Leave Act (FMLA) regulations, which take effect on January 16, 2009, and the New Jersey Family Leave Insurance Law (NJFLI), which took effect on January 1, 2009. 

If you were busy with last years’ resolutions and missed these new enactments, here is a recap. In early 2008, the FMLA was amended to provide for two new types of leave for employees with family members in the military service, Active Duty Leave and Caregiver Leave.  In late 2008, the USDOL issued new FMLA regulations, which not only explain these two new leave entitlements, but also overhauled the old regulations in many ways.  Major changes have been made with respect to how employees must request leave, how employers must respond to leave requests, the certification process, when and how employers can require substitution of paid leave, various definitions, and many other  items.

Under the new NJFLI law, an employee who takes unpaid leave to care for a new born child, a newly adopted child, or a family member with a serious health condition may be eligible for partial wage replacement benefits from the State (or an approved private plan).  The program is funded entirely through employee payroll deductions (no employer matching contribution is required), which employers were required to commence on January 1, 2009. Employees do not become eligible to apply for FLI benefits however until July 1, 2009.  Employees who apply and qualify for FLI benefits are eligible to receive 2/3 of their average weekly wage (to a maximum of $546/week currently) for a maximum of 6 weeks per 12 month period.  

Here are 10 specific things you either must do to bring your policies into compliance with the new laws, or should consider doing to take advantage of certain employer friendly provisions of these laws.

1.  Update Your Postings.  Your first resolution is an easy one.   The USDOL has issued a new “General Notice” of employee’s rights under the FMLA, WH Publication 1420, which is available on the USDOL’s website at www.wagehour.dol.gov.   This notice must be posted prominently where it can readily be seen by employees and applicants, must be large enough to be easily read, and may be “posted” electronically provided it meets the foregoing requirements.  Where the workforce is comprised of a significant portion of workers who are not literate in English, the General Notice must be in a language in which the employees are literate. 29 CFR § 825.300(a)(1) & (4).

The New Jersey DOL has also issued a Notice of Rights under the new FLI law, which must be posted in each of the employer’s worksites, in a place accessible to all employees at the worksite.  N.J.A.C. 12:21-1.8(a).  Although the FLI does not require that the posting be in any language other than English, the NJDOL has provided both an English and Spanish language positing on its website. lwd.state.nj.us/labor.

2.  Distribute Notices. Another easy one.  In addition to the posting requirements, employers have new notice distribution requirements.  The new FMLA regulations require that employers provide the new General Notice to each employee by including the Notice in its employee handbook if it has one, and if not, by distributing the Notice to each new employee upon hiring.  Either method may be accomplished electronically and the translation requirements applicable to the posting also apply.   29 CFR § 825.300(a)(3) & (4). 

 The distribution requirements for the FLI law are more extensive. Employers must provide a copy of the Notice of Rights (the same Notice that must be posted) as follows: (1) to all employees no later than December 15, 2008 (if you did not do this, you should do so now); (2) to all employees at the time of hiring, if hired after December 15, 2008; (3) to an employee whenever the employee provides notice of his/her intent to seek FLI benefits; and (4) whenever an employee requests a copy of the notice for the first time.  N.J.A.C. 12:21-1.8(b). 

3. Replace Your Forms.   You’re on a roll, another easy one.   The USDOL has issued multiple new forms to be used in connection with an employee’s request for FMLA leave.  All of the new forms are available on the USDOL’s website. 

There is a new “Eligibility Notice” and “Rights and Responsibilities Notice,” Form WH-381, which are generally provided at the same time, in the same document, as soon as possible (and not more than five days) after there is a request for leave that may be FMLA qualifying.  There are numerous specific items of information that must be included in these notices, which the USDOL forms reference, including notification of the employee’s eligibility to take FMLA leave; why the employee is not eligible for leave, if applicable; the specific expectations and obligations of the employee in connection with the leave, such as any requirement that the employee submit a supporting certification and/or furnish periodic status reports while on leave; the employee’s obligation or right to substitute paid leave; and the consequences if the employee fails to meet any obligations. The Eligibility Notice and Rights and Responsibilities Notice may be provided electronically and translation requirements applicable to the posting also apply.  29 CFR § 825.300(b) and 29 CFR § 825.300(c).

The USDOL has also issued a new “Designation Notice,” Form WH-382, which is to be provided to the employee notifying him/her of the company’s decision on his/her leave request. Generally it must be provided no more than five days after the company has sufficient information to determine if the leave is FMLA qualifying.  The Designation Notice must include certain specific items of information, such the number of hours, days or weeks that will be counted against the employee’s FMLA leave entitlement, if known at the time of the Designation Notice; whether the employee is required to substitute paid leave; and whether the employee will be required to present a fitness for duty certification when returning from  leave.   Also, if the company is exercising  its right to require a second or third medical opinion, that must be noted in the Designation Notice. 29 CFR § 825.300(d).

Finally, the USDOL has issued four new Certification forms, which employees may be required to submit in support of a leave request: due to the employee’s own serious health condition, Form WH-380-E; due to a family member’s serious health condition, Form WH-380-F; due to a qualifying exigency involving a service member, Form WH-384; and due to a service member’s serious injury or illness, Form WH-385.  The later two Certifications address the two new types of leave available under the FMLA for employees with family members in the military, Active Duty Leave and Caregiver Leave.

Claim forms to be used by employees seeking FLI benefits are not yet available, but will be posted on the NJDOL website prior to July 1, 2009.

Now that you’ve gained some confidence with some easy resolutions, its time to take a hard look at your family and medical leave policy to make sure it complies with the key changes brought about by the new FMLA regulations and the NJ Family Leave Insurance law.  Here are a few of the most important revisions you should consider making to your policy.

4. Explain the New FMLA Leave Entitlements.    The FMLA was amended in early 2008 to provide for two new types of leave for employees with family members in the military service -- Active Duty Leave and Caregiver Leave -- and the recently issued regulations provide further guidance about the nature and nuances of these new leaves.   The newly required General Notice (see resolutions 1 and 2 above) makes brief reference to these new leaves, but you may want to work a broader description of them into your leave policies in your employee handbooks, internal guidance manuals, etc.  

 Active Duty Leave is leave necessitated by a “qualifying exigency” arising out of the fact that the employee’s spouse, child, or parent is a member of the National Guard or Reserves and is on active duty or called to active duty in support of a contingency operation.  A “qualifying exigency” may include but is not limited to: addressing any issues that arise from a short notice deployment; attending certain military events; arranging for alternative childcare; making financial and legal arrangements; spending time with a service member on short term rest leave; and attending certain post-deployment activities.  Employees are eligible for 12 weeks of Active Duty Leave in a 12 month period -- not 12 additional weeks, but 12 weeks in total for Active Duty Leave or for any of the other pre-existing types of FMLA leave.  29 CFR §825.126.

Caregiver Leave is leave available to an employee who is the spouse, child, parent, or next of kin of a member of the Armed Forces (including a member of the National Guard or Reserves) who suffers a serious injury or illness in the line of duty while on active duty to care for the service member.  A “serious illness or injury” is one that may render the service member medically unfit to perform the duties of his/her office, rank or rating.   The service member must be undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list.  Unlike the other types of FMLA leave, an employee is eligible for up to 26 weeks of Caregiver Leave during a single 12 month period. 29 CFR §825.127.

An employee’s Caregiver Leave entitlement is subject to a unique calculation that you may wish to explain in your policies.  As noted, an eligible employee is entitled to 26 weeks (not 12 weeks) of Caregiver Leave in single 12 month period.   A “single 12 month period” for purposes of Caregiver Leave begins on the first day an employee takes Caregiver Leave and ends 12 months after that date, regardless of the how the employer calculates the 12 month period for other types of FMLA leave (such as a rolling 12 month period measured backward).   29 CFR §825.200(c).  Once commenced, if an employee does not use all of his/her 26 weeks of Caregiver Leave in this single 12 month period, the remaining balance of his/her Caregiver Leave is forfeited.

 Also, an employee is entitled to a combined total of 26 weeks of all types of FMLA covered leave, including Caregiver Leave, during a single 12 month period.   Any other FMLA qualifying leave taken during this single 12 month period will reduce the employee’s 26 weeks of Caregiver Leave.  29 CFR §825.200(g).

 5. Explain the New FLI Entitlements.   Although employers must post and distribute a summary of employee rights under the new FLI law (see resolutions 1 and 2 above), the NJDOL’s sample notice is not very explanatory.  You may consider providing some additional information about employees’ rights and obligations with respect to FLI benefits in your employee handbook, including: an explanation of when FLI benefits maybe taken on an intermittent vs. continuous basis; the maximum amount of FLI benefits that employees may receive per year and per event; employees’ notice requirements; a statement that eligibility is determined by the State not the company (assuming the company does not self-insure); and a statement that the FLI does not create leave rights for employees, as the FLI is simply  a wage replacement law.
 
 6. Explain the Coordination of FMLA and NJFLA Leave.   Coordinating employee’s leave rights under the FMLA and the New Jersey Family Leave Act (“NJFLA”) is already a challenge for human resources professionals, and the recent FMLA amendments further complicate this.  You should consider revising your policies to indicate when a leave will run concurrently under the FMLA and the NJFLA (and thus reduce an employee’s leave rights under both laws) and when it will not. You might consider language such as the following:

• When an employee takes a type of leave that is available only under the FMLA (for example, leave due to an employee’s own serious health condition, Caregiver Leave or Active Duty Leave), the leave will only reduce the employee’s leave entitlements under the FMLA, and will not reduce the employee’s leave entitlements under the NJFLA. Thus, for example, if an employee takes 12 weeks of leave due to his/her own serious health condition (a type of leave available only under the FMLA), the employee will still be entitled to 12 weeks of leave for purposes allowed under the NJFLA during the same 12 month period.
• When an employee takes a type of leave that is available only under the NJFLA (for example, leave to care for a civil union partner or a parent in law with a serious health condition), the leave will only reduce the employee’s leave entitlements under the NJFLA, and will not reduce the employee’s leave entitlements under the FMLA.  Thus, for example, if an employee takes 12 weeks of leave to care for a civil union partner (a type of leave available only under the NJFLA), the employee will still be entitled to 12 weeks of leave for purposes allowed under the FMLA during the same 12 month period.
• However, when an employee takes a type of leave that is available under both the FMLA and the NJFLA (for example, leave following the birth of a child or leave to care for a spouse with a serious health condition) the leave will run concurrently, meaning the leave taken will reduce the employee’s leave entitlement under both laws simultaneously.   Thus, for example, if an employee takes 12 weeks of leave to care for a spouse with a serious health condition (a type of leave available under both the FMLA and the NJFLA), the employee will have no additional leave rights during the same 12 month period.

 7. Explain the Interplay Between Substitution of Paid Leave and FLI.  This may be one of your more challenging resolutions.   Under both the FMLA and the NJFLA, employers may require that employees substitute all available accrued paid leave while absent on an approved FMLA/NJFLA leave.  However, the new FLI law restricts an employer’s ability to require employees to use accrued paid leave if the employee has applied for FLI benefits.  Specifically, the employer may only require that the employee use two weeks of accrued leave in lieu of FLI benefits.  NJAC 12:21-3.5(c).  If an employee’s family leave continues beyond the 6 weeks of FLI benefits, however, the employer may resume the substitution of paid leave requirement.  You might consider language such as the following:

The Company’s requirement that employees use all accrued paid leave while absent on a family or medical leave is modified if an employee applies and qualifies for Family Leave Insurance (FLI) benefits from the State, as follows:

• The employee will be required to use two (2) weeks of his/her accrued paid leave in lieu of the first two weeks of FLI benefits.  This will reduce the employee’s FLI benefit entitlement from 6 weeks to 4 weeks.
• The employee may elect to use additional weeks of accrued paid leave in lieu of additional weeks of FLI benefits.  The amount of accrued paid leave used will reduce by an equal amount the FLI benefits available to the employee.
• If an employee’s leave continues after the employee has exhausted his/her FLI benefits, the employee will be required to use all accrued paid leave available to him/her. After exhaustion of all accrued paid leave, the leave will be unpaid.

8.  Update Your Standards for Evaluating a Serious Health Condition Claim.  The new FMLA regulations make some changes to the definition of a covered “serious health condition,” which you may wish to incorporate into your FMLA policy or internal procedures guide.
 
One definition of “serious health condition” in the existing regulations requires three consecutive days of incapacity plus two visits to a health care provider.  The new regulations specify that the first visit to a health care provider (and the only visit where the employee is relying on a single visit plus continuing treatment) must occur within seven days of the first day of incapacity.  29 CFR § 825.115(a)(1) and (a)(2).  Where the employee is relying on two visits to a heath care provider, the two visits must occur with the 30-day period beginning with the first day of incapacity, unless extenuating circumstances exist.  29 CFR § 825.115(a)(1).

In the existing regulations, a chronic condition is a serious health condition if it results in a period of incapacity or treatment that requires periodic visits to a health care provider. The new regulations specify that the term “periodic treatment” means treatment at least two times a year. 29 CFR § 825.115(c)

9. Update Your Certification, Recertification and Return to Work Rules.  The new FMLA regulations change the certification, recertification and return-to-work certification rules to give employers more options, which you may wish to incorporate into your policies.

For example, consider tightening the rules regarding issues of “incomplete” medical certifications (meaning a certification where entries have not been completed) or “insufficient” medical certifications (meaning a “vague, ambiguous, or non-responsive” certification).   29 CFR § 825.305(c).  Some language to consider is:

If the Certification submitted by the employee is incomplete or insufficient, the employee will be given written notification of the information needed and will have seven (7) days after receiving such written notice to provide the necessary information, unless it is not practicable under the circumstances to do so.  If an employee fails to cure the deficiencies after being requested to do so, the employee’s leave request may be denied.

The new regulations also clarify an employer’s right to request “authentication” or “clarification” of medical certifications.  The new regulations allow the employer’s human resources person to contact the employee’s doctor directly instead of requiring that the employer’s doctor make the contact. 29 CFR § 825.307(a). 

You may also wish to address the issue of recertifications, as the new regulations clarify and expand employers’ rights to require recertification of medical conditions during a leave.  29 CFR § 825.308. Language along these lines captures the new regulations:

Employees absent on leave due to their own serious health condition may be required to submit a Recertification of their medical condition every 30 days, except as follows:

• The Company may request Recertification in less than 30 days if the employee requests an extension of leave, or the circumstances described in the original Certification have changed significantly, or the Company receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the Certification.
• The Company may not request Recertification every 30 days if the employee’s original Certification indicates that the minimum duration of the employee’s leave is more than 30 days.  In such cases the employee may be required to submit a Recertification after the specified minimum duration.  Regardless of the specified minimum duration, however, an employee may be required to submit a Recertification of medical condition every six months. 
• Whenever the Company does request a Recertification, the employee must submit the Recertification to the Human Resources Department within 15 days after the Company’s request, unless it is not practicable under the circumstances to do so.  If an employee fails to provide timely Recertification after being requested to do so, the Company may deny continuation of leave until the Recertification is provided.

The new regulations also clarify issues surrounding return to work certifications, and for example allow an employer to require a job-specific fitness for duty certification indicating that the employee is capable of performing the essential functions of his or her job.  29 CFR § 825.312.  You may wish to incorporate language regarding employee status reports and return to work certifications, as follows:

The Company may also require an employee on leave to report periodically on his/her status and intent to return to work.

Employees absent on leave due to their own serious health condition will be required to submit a Certification at the conclusion of their leave verifying their fitness for duty.  If an employee fails to provide a fitness for duty Certification after being requested to do so, the Company may deny restoration until the Certification is provided.

10. Conduct Some Training.   You have made some ambitious resolutions, so let’s make your final one easy: arrange for some training for your human resources professionals.   The above items are merely some highlights of the new FMLA regulations and the new FLI law, and there are many other changes that your employees with compliance responsibilities must understand.  A few hours of training on the basics of the new laws will surely save time and aggravation, and possibly lawsuits, down the road. 

Ed. Note: A download of the complete text of the regulations, from the Federal Register with comments and explanations is available from the Department of Labor website.

Mark Diana is a shareholder in the Morristown office of Ogletree Deakins, specializing in labor & employment and litigation.