Summary of new FMLA Regulations: 10 Key Changes

On Monday, November 17, 2008, the Department of Labor (DOL) published its final rule to implement the first-ever amendments to the Family and Medical Leave Act (FMLA). The new regulations update and clarify certain key issues under the FMLA, in addition to providing guidance on the law’s recent coverage changes for military family leave.

These changes become effective January 16, 2009. A full copy of the new regulations is available for download from the DOL.

Today begins a three-part series on these new regulations, beginning with the top 10 substantive changes to the old FMLA scheme. Tomorrow, I’ll take a look at the military leave regulations, and next Monday I’ll provide my thoughts on the pros and cons of the new regulations.

The regulations change the FMLA in the following key areas:

Serious Health Condition:

1. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider,” which now must take place within seven days of the first day of incapacity.

2. Another definition of serious health condition involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The new regulations clarify that the first visit to the health care provider must take place within seven days of the first day of incapacity.

3. The new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Light Duty: 

1. Time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement.

2. An employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).

Substitution of Paid Leave: FMLA leave is and remains unpaid, although employer can require that employees use any and all paid time off (sick days, vacation, personal days, etc.) concurrently with FMLA leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FMLA leave must follow the same rules of the employer’s policy that apply to other employees for the use of such leave.

Perfect Attendance Awards: Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave, as long as it treats employees taking non-FMLA leave identically.

Employer Notice Obligations:

1. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook or otherwise upon hire); an eligibility notice and a rights and responsibilities notice (given when leave is requested); and a designation notice (given when leave is designated as FMLA-leave).

2. The new regulations extends the time for employers to provide these various FMLA notices from two business days to five business days.

All of these forms are available from the DOL in the new regulations.

Employee Notice: The new regulations provide that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

Medical Certification Process

1. During the medical certification process, the employer will be permitted to speak directly to the employee’s health care provider, so long as the employer’s contact person is a health care provider, human resource professional, a leave administrator, or a management official. It can never be the employee’s direct supervisor.

2. Employers may not ask health care providers for additional information beyond that required by the certification form.

3. The DOL will provide separate medical certification forms for the employee and covered family members. The forms will also allow, but not require, health care providers to provide a diagnosis of the patient’s health condition as part of the certification.

4. If an employer deems a medical certification to be incomplete or insufficient, the employer must specify, in writing, what information is lacking, and give the employee at least seven calendar days to cure the deficiency.

5. Employers may request a new medical certification each leave year for medical conditions that last longer than one year.

6. In all cases, employers are now permitted to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness-For-Duty Certifications:

1. An employer may require that the certification specifically address the employee’s ability to perform the essential functions of the job.

2. Where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work from intermittent leave.

The Ragsdale Decision/Penalties: Ragsdale v. Wolverine World Wide  ruled that an employer’s failure to properly designate leave as FMLA leave cannot result in the grant of additional leave to an employee without a specific showing of harm to the employee from the missed designation. The new regulations clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable for the additional FMLA time.

Waiver of Rights: Taylor v. Progress Energy held that no FMLA waiver, whether retrospective or prospective, can be valid unless first approved by a court or the DOL.The new regulations clarify that employees may voluntarily settle or release their FMLA claims based on past conduct without court or agency approval. Prospective waivers of FMLA rights continue to be prohibited absent prior approval.

Do you know? Compensation for travel time

Do you have employees that travel for work? Do you know that only certain travel time may be considered compensable and therefore paid for? As a general rule, time spent traveling from home to work and back again to home does not have to be compensated.

Like all rules, however, there are exceptions.

1. Time spent by an employee traveling as part of the principal work activity, such as travel from job site to job site during the workday, or travel between customers, is counted as hours worked and must be paid.
2. Travel that keeps an employee away from home overnight must also be compensated, but only when the travel time occurs during an employee’s normal workday. Thus, if an hourly employee's normal work day runs from 8 am to 5 pm, only out-of-town travel during those hours must be paid. This rule applies whether the travel occurs on a regular work day or a normal day off. So, if the same employee travels during regular work hours on a Sunday, but regularly has Sunday off, the time must still be paid.
3. Out-of-town travel that is completed all in one day receives different treatment. The employee is compensated for the travel from home to the out-of-town worksite, less the amount of time it would have taken the employee to drive to work during a regular workday. The rationale is that the employee should not have to be compensated for the time he or she would have spent traveling to and from work on a regular work day.

The swift hand of justice

Next time you consider whether you really want to litigate a case, consider the following case study.

On Friday, I reported about a case in which a jury vindicated a city administrator whose secretary accused him of sexual harassment for staring at her breasts. She filed her case in December 2002. In July 2006, the trial court dismissed the lawsuit on the employer’s motion for summary judgment. In February 2008, the court of appeals reversed that ruling. The trial was finally held on October 31, 2008, nearly six years after the case was originally brought. On Point reports this saga has cost the employer nearly $400,000 to defend. And, it’s not over yet. The plaintiff has filed a motion for new trial, and when that is denied, she’ll likely go back to the court of appeals. Everyone had their day in court, but at what cost?

ALERT: New FMLA regulations to be published Monday

The title says it all. Once I've had a chance to digest the new regs (they're over 700 pages) I'll have more to say.

WIRTW #56

The Employee Free Choice Act remains the hot labor and employment law topic. The stat of the week comes courtesy of the Delaware Employment Law Blog. During the first half of 2008, labor unions won an astounding 66.8% percent of secret ballot elections conducted by the National Labor Relations Board, as compared to 58.5% during the same period in 2007. At this clip, do unions really need help from the EFCA? It seems like they are doing just fine all on their own.

This rest of this week’s review touches on four themes important in today’s workplace – layoffs, bullying, technology, and discrimination:

1. Layoffs

Downsizing is a popular topic these days. The ABA Journal correctly points out that more layoffs equates to more employment lawsuits. Meanwhile, Bob Sutton plays some word games in trying to find the right nomenclature for a workforce reduction.

2. Bullying

The Laconic Law Blog discusses some possible common law remedies for employees who are bullied at work. George’s Employment Blawg asks if we really need anti-bullying laws at all. Case in Point talks about the workplace dangers of salty language. On Point reports on a real live case of bullying at work – a case in which a jury found that a manager’s staring at a subordinate’s breasts did not constitute sexual harassment. He claimed that he could not help himself because of an eye disorder.

3. Technology

The Connecticut Employment Law Blog opines on the use of social networking sites (such as Facebook) to uncover facts in discovery. If you need a good example of how this might play out, The HR Capitalist gives us an interesting case study on 13 flight attendants fired by Virgin Airways for inappropriate comments on their Facebook pages. Electronic Discovery Law reports on a case in which an employee was found to have no expectation of privacy on a workplace computer, even for personal information stored there.

4. Discrimination

World of Work brings us news of a settlement of case challenging an English-only workplace policy. Workplace Horizons talks about what “passive discrimination” means and why plaintiffs’ lawyers might target some of your workplace policies because of it. BLR’s HR Daily Advisor discusses rules for employee medical exams under the ADA.

8 common employee handbook mistakes, and how to avoid them

HR Legal News provides a list of its top common mistakes in employee handbooks. The following discusses some of the list, offers some tips on how to avoid common trouble spots, and adds a few more mistakes that should be avoided.

1. Illegal overtime policies: For example – “All overtime must be authorized by a manager or supervisor and the company will only pay authorized overtime.” Such is policy is illegal if it is applied as written. All overtime, whether its authorized or not, should be paid. A better rule to control unauthorized overtime is to prohibit unauthorized overtime and discipline those employees who violate the rule.

2. Vague FMLA language: The FMLA is rife with traps for employers who do not specify certain eligibility requirements. Otherwise, a company leaves itself open to be sued by otherwise ineligible employees. A handbook should also be clear on the interplay between FMLA leave and other paid leave policies, and to make sure that employees cannot double-dip by first exhausting paid leave before turning to unpaid FMLA leave.

3. Bans on salary discussions: The National Labor Relations Act makes it unlawful for any employer, whether union or non-union, to interfere with, restrain, or coerce employees exercising their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. One such protected activity is discussing terms and conditions of employment, such as wages. A policy that could be construed to prohibit discussions of wages or other terms and conditions of employment would violate the NLRA. A safer rule would limit confidentiality to information about corporate information and customers, and would not interfere with disclosure of information about employees’ terms and conditions of employment.

4. Unnecessary probationary periods: Probationary periods are typical in union contracts, but have no place in a non-union setting. Such a policy is counter-intuitive to the at-will nature of the employment, and could set an unreasonable expectation of continued employment after the 90 days expire. A better policy would simply re-affirm that employees are at-will and can be terminated at any time for any reason, and that all new employees’ performance will be evaluated after 90 days.

5. Too many details: A handbook should be a set of guidelines for the company to follow. It should not be intended to account for every situation that could arise, not should it be written in stone. Companies should write handbooks to leave enough flexibility to change policies when the situation dictates.

6. Missing no-solicitation policies: These policies are necessary to try to limit union solicitations in the workplace, but cannot be specifically directed at union activities. Instead, companies can draw any reasonable line, so long as the line drawn is not specifically tied to union solicitations. Moreover, the rule should include the use of bulletin boards and corporate computer systems (e-mail, intranets, etc.).

7. Lack of an at-will disclaimer and signed receipt: In litigation, a handbook is only as good as being able to prove that an employee received it on a certain date. The best proof is a signed, dated receipt in all employees’ personnel files, with enough information in the receipt itself to link it to the handbook (such as a date for the issuance of the handbook). Also, handbooks should clearly state that employees are at-will, that the handbook is not a contract, and that employees should not rely on any statements in the handbook. These simple measures will help protect against breach of contract and promissory estoppel claims.

8. Missing Harassment Policy: An anti-harassment policy is necessary to take advantage of the Faragher/Ellerth affirmative defense. It is one of the most important policies a handbook should contain, and no handbook is complete without having such a policy.

Handbooks are a necessary evil in today’s workplace, but present myriad dangers for employers if they are not carefully drafted with a keen eye to legal compliance.

“Laying the smackdown” is not an adverse employment action

An adverse employment action in a discrimination case is an action by an employer that effects a significant change in one’s employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

In Mathirampuzha v. Potter (2nd Cir. 11/3/08), the 2nd Circuit decided that an employee who had been physically assaulted by a supervisor had not suffered an adverse employment action. Ron Sacco, a supervisor but not Mathirampuzha’s direct supervisor, grabbed his arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Mathirampuzha’s direct supervisor immediately intervened to separate the parties. After a union official filed a complaint on Mathirampuzha’s behalf, the employer issued Sacco a formal written warning a transferred him to a different facility.

The court held that Sacco’s physical assault of Mathirampuzha did not rise to the level of an adverse employment action:

Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action. In the context of hostile work environment claims, we have stated that a single event, if “extraordinarily severe,” could alter the conditions of a working environment…. A “single incident of rape,” for example, “sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of 29 Title VII liability for sex-based discrimination.

Sacco’s aggressive conduct toward the plaintiff … was not an adverse employment action. After the incident took place, the plaintiff continued to work at the Wallingford plant in the same position, at the same pay, and with the same responsibilities. Indeed, there is no evidence that the assault brought lasting harm to the plaintiff’s ability to do his job. The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions -- unlike, for example, a rape, … or an obscene and humiliating verbal tirade that undermines the victim’s authority in the workplace…. The Postal Service’s response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff’s working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year.

Nobody is a bigger proponent than me of not turning our anti-discrimination laws into a general workplace civility code. But, do we want to draw a bright line in the sand, with grabbing, punching, poking, and spitting on one side, and rape on the other? Do we want African-American employees who are targeted with violence to be scuttled out of court on a summary judgment motion? Do we want women browbeaten by their male co-workers to have to raped before they can file a claim? The line drawn by the court in this case simply seems unreasonable.