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Library Law: Amendments to the FMLA Effective January 16, 2009
By E. Kenneth Friker and James W. Fessler, Klein, Thorpe and Jenkins, Ltd.
January 1, 2009
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In January, 2008, amendments to the Family and Medical Leave Act (FMLA) were enacted to provide new military family leave entitlements and to update the now 15-year old Act. On November 17, 2008, the U.S. Department of Labor published its Final Rule to implement the foregoing amendments. The Final Rule, effective January 16, 2009, intends to improve communication between employers, such as libraries, employees and health care providers to make the Act operate more smoothly and provide needed clarity about responsibilities and rights under the Act. Highlights of the Final Rule follow.

Military Family Leave Afforded.

Two new military family leave entitlements were provided.

1. Military Caregiver/Covered Servicemember Leave:
   
   Eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty. This 26 workweek entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.
   
2. Qualifying Exigency Leave:
   
   This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. “Qualifying exigencies” include (1) short notice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities not encompassed in other categories, but agreed to between employer and employee. This provision helps families of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation.

Employer Penalty Removed

Prior to the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide, when an employer failed to appropriately designate FMLA leave, the employee was provided an additional 12 weeks of FMLA protected leave even though the employee had already received FMLA protected leave. In Ragsdale, the U.S. Supreme Court held that this penalty was inconsistent with the FMLA entitlement to only 12 weeks of leave and contrary to the FMLA's remedial requirement that an employee demonstrate individual harm. The Final Rule removes the categorical penalty provisions against employers and now provides that when an employer fails to follow the notification rule and the employee suffers individualized harm, the employer may be liable.

Light Duty Clarified

The Final Rule clarified that time spent performing “light duty” work does not count against an employee's FMLA leave entitlement. The Final Rule also clarified that the 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.

Employee Waiver of Rights Clarified

The Final Rule clarifies that employees may voluntarily settle or release their FMLA claims without court or Department of Labor approval.

“Serious Health Condition” Clarified

The Final Rule retains the six individual definitions of “serious health condition” while adding guidance on three matters. First, 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. Under the Final Rule, the two visits must occur within 30 days of the beginning of the incapacity and the first visit must take place within seven days of the first incapacity. A second definition of “serious health condition” involves more than three consecutive full calendar days of incapacity plus a regimen of continuing treatment. Again, the Final Rule provides that the first visit to a health care provider must take place within seven days of the first day of incapacity. Third, the Final Rule defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Substitution of Paid Leave Modified

Under the Final Rule, all forms of paid leave offered by an employer (vacation, personal, medical, sick leave or paid time off) will be treated the same regardless of the type of leave substituted for the FMLA leave. An employee electing paid leave concurrently with FMLA leave must follow any employer terms and conditions that apply to other employees for the use of paid leave. If any employee does not meet the employer's conditions for taking paid leave, the employee is entitled to take unpaid FMLA leave, and the employer may waive any procedural request for the taking of any type of paid leave.

Perfect Attendance Awards Changed

The Final Rule allows employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as employees taking non-FMLA leave are treated identically.

Employer Notice Obligations Reconciled and Clarified

The Final Rule consolidates all the employer notice requirements into one section and reconciles conflicting provisions and time periods. The Final Rule requires employers to provide employees with a general notice about the FMLA, an eligibility notice, a rights and responsibility notice and a designation notice. The Final Rule also extends the time for employers to provide various notices from two business days to five business days.

Employee Notice Modified

The Final Rule provides that an employee needing FMLA leave must follow the employer's usual and customary procedure for reporting an absence, absent unusual circumstances. The Final Rule also highlights (without changing) the consequences if an employee fails to provide proper notice of his or her need for FMLA leave.

Medical Certification Process (Content and Clarification)

In light of the Health Insurance Portability and Accountability Act (HIPAA) and the HIPAA privacy rule protecting communications between employers and employee health care providers, the Final Rule states that any employer representative contacting an employee's health care provider must be a health care provider, human resource professional, leave administrator or management official, but never the employee's direct supervisor. In addition, employers cannot ask health care providers for additional information beyond that required by the certification form. The Final Rule also creates separate forms for employees and covered family members and allows health care providers to provide a diagnosis of the patient's health condition as part of the certification. Finally, if an employer deems the certification incomplete or insufficient, the employer must so specify in writing what information is lacking and give the employee seven days to cure the deficiency.

Medical Certification Process (Timing) Requirement

The Final Rule provides that employers may request a new medical certification each leave year for medical conditions that last longer than one year. The Final Rule also allows an employer to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness for Duty Certification Changes

The Final Rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee's ability to perform the essential functions of the employee's job. Second, where reasonable job safety concerns exist, an employer may require fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.

About the Authors

E. Kenneth Friker and James W. Fessler are partners with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park. The firm concentrates in the representation of local libraries, Library Districts and Library Systems, as well as other local governmental units.

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