Proposed FMLA Regulations: Qualifying Reasons for Leave, Designation of Leave, and Release of Claims

The Proposed FMLA Regulations and Their Effect on You -

Part IV: Qualifying Reasons for Leave, Designation of Leave, and Release of Claims

Over the last three weeks, we have been providing summaries of a few of the proposed revisions and clarifications contained in the Department of Labor's (DOL) proposed revisions to the regulations implementing the Family and Medical Leave Act of 1993 (FMLA). You can find the previous articles on the FMLA section of our Web site. This week, we continue the series by focusing on revisions and clarifications related to qualifying reasons for FMLA leave, designation of leave, and release of FMLA claims.

Definition of "serious health condition"-Continuing treatment

Under the current regulations, an employee may have a "serious health condition" (and be eligible for FMLA leave) if the employee's health condition involves "continuing treatment" by a health care provider. One of the definitions of "continuing treatment" is incapacity for more than 3 calendar days plus 2 or more treatments with a health care provider. The proposal clarifies that the "2 or more treatments" must occur within a 30-day period of the beginning of the period of incapacity, unless extenuating circumstances exist.

Effect on you
If the proposal is passed, it will be easier for you to determine whether an employee has a "serious health condition" and is, thus, eligible for FMLA leave. Specifically, it will be clear that an employee must receive the "2 or more treatments" within 30 days of the beginning of his or her incapacity in order to qualify for this definition of "continuing treatment."

Definition of "serious health condition"-Chronic conditions
Under the current regulations, an employee is considered to have a "chronic condition" if his or her condition requires "periodic visits" to a health care provider. "Periodic visits" is not currently defined. The proposal defines "periodic visits" as at least twice per year.

Effect on you
If the proposal is passed, you will have clearer guidance on when an employee has a "chronic condition." If the employee's condition does not require at least 2 visits to a health care provider per year, then—under the proposal—he or she does not have a "chronic condition."

Eligibility for FMLA leave-Documentation of family relationship
The current regulations provide that, in addition to a child's birth certificate or court document, a "simple statement" from an employee is sufficient to establish a family relationship. The proposal adds language to clarify that the statement from the employee should be a sworn, notarized statement. In addition, the proposal provides that a family relationship may be established by the submission of a submitted and signed tax return.

Effect on you
If the proposal is passed, you will be able to require your employees to provide a sworn, notarized statement of family relationship when no other document (such as a birth certificate, court document, or tax return) establishes the relationship.

Designation of FMLA leave-Employer reporting requirements
The current regulations require employers, when responding to requests for FMLA leave, to inform employees that the request is designated and will be counted as FMLA leave. It does not, however, specifically require employers to provide employees with information detailing the amount of leave designated as FMLA leave. The proposal requires employers to inform employees whether or not the leave has been designated as FMLA leave and the number of hours, days, or weeks that will be counted against the employee's FMLA entitlement. If it is not possible to provide the number of hours, days, or weeks that will be counted against the employee's FMLA entitlement (such as in the case of unforeseeable intermittent leave), the employer must provide such information every 30 days to the employee if leave is taken during the 30-day period.

Effect on you
If the proposal is passed, you will be required to include some new information on the forms you use to designate FMLA leave, specifically the number of hours, days, or weeks that will be counted against the employee's FMLA entitlement. Also, when you cannot make this determination at the time of the request (as will often be the case when an employee obtains a certification for intermittent leave), you will have a significant new reporting obligation. That is, you will be required to provide notice to the employee every 30 days regarding how much time has been designated as FMLA leave if the employee has taken leave during the 30-day time period. In the case of an employee who regularly uses unforeseeable intermittent leave each month, you may thus be required to provide an "update" every 30 days as to how much time has been designated as FMLA leave. The update may be provided on a pay stub.

Intermittent or reduced schedule leave-Treatment of overtime hours
The current regulations do not explicitly address the issue of whether missed overtime hours can be counted against the FMLA entitlement of an employee who is using intermittent or reduced schedule leave. The preamble to the current regulations, however, provides some guidance and states that the answer to this question depends on whether the employee would be required to use some form of leave to cover those hours in a non-FMLA situation. The preamble also distinguishes between mandatory overtime, voluntary overtime, and overtime on an "as needed basis." The proposal does not add any language to the regulations that addresses this issue. However, the proposal does include a new explanation of the DOL's position on this issue in its preamble. In the preamble to the proposed regulations, the DOL states that it now takes the position that the focus should be on whether the employee would otherwise be required to report for duty but for the taking of FMLA leave. If the answer to that question is yes, then the hours not worked may be counted against the employee's FMLA entitlement. Also, if the employee is working a part-time or reduced leave schedule, then the employee's leave usage is proportionate to the employee's scheduled hours in a week. For example, if an employee is limited to working 40 hours but is scheduled for 48 hours, then the employee takes 8/48=1/6 week of FMLA leave.

Effect on you
If the DOL maintains its position on this issue, you will have clearer guidance on how to handle employees who miss required overtime hours because they are taking intermittent or reduced schedule leave. In particular, if the employee would otherwise be required to work the overtime but for the taking of FMLA leave, then you will be able to count the overtime hours missed against the employee's FMLA entitlement.

Release of claims
The current regulations provide that "employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA." Recently, a federal appellate court interpreted this provision to mean that employees could not waive any FMLA claims, including past FMLA claims, without court or DOL approval. This holding effectively prevented employers from settling past FMLA claims without getting a court or the DOL involved. The DOL has always taken the position that this provision means only that employees cannot waive their prospective rights under the FMLA. The proposal contains language that clarifies this position.

Effect on you
If the proposal is passed, it will be clear that any release or settlement of an employee's past FMLA claims (perhaps through a general release executed in conjunction with a separation agreement) is valid.

If you have questions related to these proposed regulations, please contact a member of Ice Miller's Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.