By Adrianna Marks and Greg Ossi

Consider the following scenario: You are a coal mining operator with 50 or more employees. One of your employees—a miner—approaches you about taking some time off. He is a re-hire, a miner who had left your employ several years ago but who had returned just two months before being injured. He has missed the last few days of work due to a back injury. He is now informing you that he will need time off each week going forward for recuperative physical therapy.

As this miner’s employer, what are your affirmative obligations with regard to his request for time off? Must you provide the time off for the weekly physical therapy? If yes, do you have any say regarding when that time off is scheduled? Is there paperwork to be filled out and/or provided to the employee?

Chances are that, upon being faced by a scenario like this, you know that the answers to such questions lie in the provisions of the federal Family and Medical Leave Act (FMLA) and related regulations. However, you may not be aware that amendments to the FMLA and its regulations at the tail end of the Bush administration have made compliance with the law a bit of a moving target over the past year. Attempting to handle an employee’s request for leave in the same way you would have a year ago could give rise to compliance issues. With that in mind, the remainder of this article provides a brief overview of recent amendments to the FMLA with a focus on those amendments implicated by the injured miner example.

FMLA & Recent Amendments
The FMLA has been in existence since 1993. It mandates that larger employers—those with 50 or more employees—provide eligible employees with a designated amount of unpaid leave for various qualifying reasons, including leave for an employee’s serious health condition. The law has rules regarding the rights and responsibilities of employers and employees under the Act, including which employees are eligible for leave, what constitutes a qualifying reason for leave, what circumstances can give rise to a right to take intermittent leave, and what paper work must be distributed and/or completed when an employer learns of an employee’s leave request.

On January 28, 2008, former President Bush signed the National Defense Authorization Act of 2008 (NDAA) into law. The NDAA amended the FMLA to provide for two additional types of leave for the family members of certain armed service members. In addition, on November 17, 2008, the Department of Labor promulgated new final regulations under FMLA, which took effect January 16, 2009. These new final regulations address exigency leave and military caregiver leave and also provide for extensive revisions to the pre-NDAA FMLA regulations. Note: On October 28, 2009, President Obama signed into law a bill that expands military-related leave under the FMLA.

Several of the new regulatory amendments are implicated by the injured miner example:

New break in service rule—Whenever an employee makes a request for FMLA leave, as the miner in the example has, an employer must assess whether that employee is eligible for leave. One of the eligibility requirements is that an employee must have worked for his employer for at least 12 months. The new regulations clarify that, though an employee’s 12 months of employment need not be consecutive, employment prior to a seven year gap in service need not be counted. This seven year break in service rule is subject to exceptions only in the case of employees who have left employment to serve in the military or whose collective bargaining agreements have provisions addressing breaks in service. Given these rules, it is not clear whether the miner in the example is actually eligible to take FMLA leave. In assessing his eligibility, it would be important to gather additional facts regarding the length of his break in service and why that break in service occurred.

New notice and designation requirements—Under the FMLA, an employer must provide employees who may need to take FMLA-related leave—like the miner in the example—with certain notices. For example, an employer must provide an employee with an eligibility notice, a rights and responsibilities notice, and a FMLA designation notice. The new regulations clarify the content of each of these notices and permit five days (absent extenuating circumstances) to provide them as opposed to the previous two days. In addition, the new regulations provide employers with overhauled  model notice forms.

New health care provider certification form and requirements—The miner in the example is seeking FMLA leave on account of a serious medical condition. Under the FMLA, an employer may require that an employee seeking leave on account of a serious health condition obtain medical certification from a health care provider as proof of the need for leave. The new regulations provide a revised model health care provider certification form and stipulate that the form should accompany the rights and responsibilities notice. The new regulations also require that, if an employer is dissatisfied with the sufficiency of a completed medical certification form, it provide the employee with written notice of the deficiencies and give the employee seven days to cure. 

New rules relating to requests for intermittent leave—The miner in the example is seeking intermittent or reduced schedule FMLA leave for physical therapy, which is permissible under the FMLA if he has a serious health condition requiring it. The new regulations clarify that, when such leave is necessary, an employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations. Therefore, it may be possible for an employer to exert some control over the scheduling of an employee’s intermittent leave.  However, under the new regulations, the timing of treatment is ultimately a medical determination within the purview of the health care provider.

Marks and Ossi practice law with Venable, a Vienna, Va.-based law firm specializing in labor related issues. Marks can be reached at Tel: 703-760-1600 or E-mail: AMarks@venable.com.