In Part 1 of this series on the new FMLA regulations, we considered the exigencies related to military service that now are FMLA-qualifying events. In Part 2 of the series, we looked at the regulations relating to the new 26-week leave entitlement for the care of a servicemember in the employee’s family. The new regulations dealing with those two topics are brand new and are designed to address the new types of leave created by recent Congressional amendments to the FMLA.
In this third and final installment in this series, we will look at some changes made to the “old” FMLA provisions, to update or clarify existing issues.
In order to be eligible for FMLA leave, an employee must have worked for their covered employer for at least 12 total months. The old regulations were silent, though, about whether the 12 months must be consecutive, and, if not, how far back an employer was required to look to calculate the 12 total months. The new regulations make clear that the time must not be consecutive but that an employee only look back 7 years.
In other words, if an employee worked for a period of 6 months five years ago, and then returns to employment now, that employee need work only 6 more months in order to meet this eligibility requirement for FMLA leave. The exceptions to this requirement that an employer consider time worked during the last seven years only is when the leave of more than seven years was due to military service or is addressed by some written contract or collective bargaining agreement that explicitly provides for reemployment after some specific type of leave.
Employer notice requirements
The new regulations consolidate all of the notice provisions into one section. In addition, the regulations make clear that
“When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.”
The notable difference in the new regulations is that when an employer concludes that an employee is not entitled to FMLA leave, the notice must state explicitly that the employee is not eligible and must include at least one reason why the employee is not eligible. The regulations also require that the notice include detailed information about various rights and responsibilities of the employee pursuant to the FMLA.
Also, consistent with recent US Supreme Court precedent, the employer may retroactively designate a leave as FMLA leave. To do so, though, the regulations require that the retroactive designation not act to cause harm or injury to the employee.
Generally, an employee must provide 30 days notice of the need for FMLA leave, when the employee knows that he or she will need such leave. If 30 days notice is not practicable, the notice must be given as soon as practicable. The regulations specify, then, that
“As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.”
Note that the notice must be given the same day or the next business day when the employee knows that he or she needs the leave. The new regulations also specify that an employee can be required to comply with an employer’s regular policies relating to requests for leave. For example, the employee may be required, consistent with the FMLA, to direct the leave request to a particular individual and to include in the leave request certain information normally required of employees who request time off.
Interestingly, the new regulations now provide that when an employee fails to provide adequate notice, the employer may delay the leave by the same amount of time the notice was delayed. For example, if an employee could foresee the need for leave more than 30 days ahead of the time for leave, but did not give notice more than 30 days prior to the need for leave, the employer may delay the FMLA leave until 30 days after the notice was given. Additionally, in a case in which the employee did not have an ability to provide notice 30 days in advance, the regulations provide this example:
For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week (thus, if the employer elects to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave will not be FMLA protected).
There are a number of other changes to the regulations, but these are some significant ones that are sure to affect many leave requests. As always, when making important personnel decisions, such as considering leave requests, be sure to get competent legal counsel in this rapidly changing and highly regulated employment environment.