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DOL Proposes Rulemaking on Servicemember FMLA and More

On January 31, 2012, the Department of Labor (DOL) released proposed changes to the agency’s Family and Medical Leave Act (FMLA) regulations, which were published in the Federal Register on February 15. This Notice of Proposed Rulemaking (NPRM), a necessary precursor to any regulatory change, seeks comments from interested parties by April 16. Comments may be submitted, identified by Regulatory Information Number (RIN) 1235–AA03, by electronic submission through the Federal eRulemaking Portal http:// www.regulations.gov. Comments may also be submitted by mail to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S–3510, 200 Constitution Avenue NW., Washington, DC 20210. The last time the DOL issued FMLA regulations was in 2008, and this NPRM seeks to incorporate changes made in the FMLA since that time.

By way of background, as a part of the National Defense Authorization Act (NDAA) for Fiscal Year 2008, Congress passed legislation amending the FMLA to cover an employee’s absence from work because of exigent circumstances when a family member has been called to active military duty, and to care for a family member or “blood relative” who becomes injured or ill while on active duty or in a contingency operation. President Bush signed the legislation on January 28, 2008 and the changes in the law became effective immediately. President Obama signed the FY 2010 NDAA in October 2009, which expanded the scope of Servicemember FMLA in certain ways, including the protection of Federal employees covered under Title II of the FMLA.

The Department of Labor’s 2008 regulations established guidance for handling FMLA Servicemember leave issues: 29 C.F.R § 825.126 addresses “active duty leave” due to a qualifying exigency; and 29 C.F.R § 825.127 addresses “servicemember family or caregiver leave.” It was unclear whether the changes to Servicemember FMLA in the 2010 NDAA were effective upon signing or would be effective when the regulations are issued, but most employers have treated those changes as if they were effective upon signing.

But now the DOL has said that employers are not required to provide employees with caregiver leave to care for a veteran until final regulations are promulgated. The DOL’s position is any time provided by an employer is voluntary and cannot be counted against an employee to reduce FMLA entitlement. No court has addressed this, or any other Servicemember FMLA claim, however, so it is not clear the DOL’s position would be accepted.

Congress also passed the Airline Flight Crew Technical Corrections Act (AFCTCA) in 2009, which provided a different method of calculating FMLA eligibility for airline flight crew employees. The NPRM addresses this amendment as well, and would also make some other changes to the existing FMLA regulations.

Servicemember Leave

Definition of Active Duty (§ 825.126(a)): The DOL proposal replaces the existing definition of “active duty” with two new definitions: “covered active duty” for the Regular Armed Forces and “covered active duty” for the Reserves. The DOL suggests this change will reflect the fact “there are limitations on the types of active duty that can give rise to qualifying exigency leave.”

“Covered active duty” for the Regular Armed Forces tracks the changes of the FY 2010 NDAA: A member of the Regular Armed Forces meets the definition of “covered active duty” when he or she is deployed with the Armed Forces in a foreign country.

“Covered active duty” for the Reserves requires more discussion. The DOL’s proposal provides that “covered active duty or call to covered active duty” status for a member of the Reserve components as duty under a call or order to active duty during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation. The FY 2010 NDAA deleted “contingency operations” from the FMLA, but DOL’s position is that it will continue to require members of the Reserve components to be called to duty in support of a contingency operation in order for family members to be eligible for leave as a “qualifying exigency.” If the proposed regulation is adopted, employers would need to offer leave to eligible family members of a Reservist who is called to duty in support of a contingency operation when that call is to a foreign country.

Exigency Leave for Childcare and School Activities (§ 825.126(a)(3): The 2008 regulations state that eligible employees may take qualifying exigency leave to arrange childcare or attend certain school activities for a military member’s son or daughter. The DOL’s proposal places limits on this leave: (1) the military member must be the spouse, son, daughter, or parent of the employee requesting leave; and (2) the child must be “the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.”

Exigency Leave for Rest and Recuperation (§ 825.126(a)(6)): The 2008 regulations permit eligible employees to take up to five days of leave to spend time with a military member on rest and recuperation leave during a period of deployment. The DOL’s proposal expands this to 15 days, but cannot exceed the actual amount of time granted to the military member. An employer may request a copy of the military member’s rest and recuperation leave orders or other relevant military documentation to support the need for leave.

Certification Provisions for Caregiver Leave (§ 825.310): The 2008 regulations restrict the healthcare providers authorized to certify a serious injury or illness for military caregiver leave. These individuals must be affiliated with the DOD as either a part of the VA or DOD-TRICARE. The DOL’s proposal eliminates this distinction and permits any healthcare provider authorized under Section 825.125 of the regulations to certify a serious health condition as capable of certifying a serious injury or illness under the caregiver provision.

The DOL’s proposal would modify Section 825.310(d) to provide that second and third opinions are not permitted when the certification has been completed by one of the types of DOD/VA authorized healthcare providers identified in Section 825.310(a)(1)-(4), but that second and third opinions are permitted when the certification has been completed by a healthcare provider that is not one of the types identified in Section 825.310(a)(1)-(4).

Definition of Covered Veteran for Caregiver Leave (§ 825.127): The 2008 regulations do not define “covered servicemember” with regard to veterans. The DOL proposal would define “covered veteran” as someone discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for a covered veteran. Thus, a veteran will be a “covered veteran” if he or she was a member of the Armed Forces in the five-year period immediately before the date the requested leave would begin.

Definition of Serious Injury or Illness (§ 825.127): The DOL’s proposal provides that a serious injury or illness that existed before the beginning of the military member’s active duty and that was aggravated by serving in the line of duty while on active duty will include (1) conditions that were noted at the time of entrance into active service; and (2) conditions that the military was unaware of at the time of entrance into active service but that are later determined to have existed at that time. Such a preexisting injury or illness will be considered to have been aggravated by “service in the line of duty on active duty” when there is an increase in the severity of the injury or illness during service, absent a specific finding that the increase in severity is the result of the natural progression of the injury or illness.

The FY 2010 NDAA required the DOL to define a qualifying serious injury or illness for a veteran, and the DOL has proposed a new Section 825.127(c)(2) to meet that requirement, offering three alternatives:

(i) A serious injury or illness of a covered veteran as a serious injury or illness of a current servicemember, as defined in Section 825.127(c)(1), that continues after the servicemember becomes a veteran.

(ii) A serious injury or illness for a covered veteran as a physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50% or higher and such VASRD rating is based, in whole or part, on the condition precipitating the need for caregiver leave.

(iii) Injuries and illnesses not technically within the definitions proposed in paragraph (c)(2)(i) or (ii), but are of similar severity. The DOL notes that this definition is designed to encompass traumatic brain injuries, post-traumatic stress disorder, and other conditions that may not appear or manifest themselves until military member has become a veteran.

The DOL also seeks input on whether it should promulgate a regulation that veterans who qualify for enrollment in VA’s Program of Comprehensive Assistance for Family Caregivers (PCAFC) would automatically meet definition of a serious injury or illness.

Airline Flight Crew Employee Eligibility

The amendment to the FMLA for flight crew eligibility provides that, after December 21, 2009, an employee meets the hours of service requirement if she has worked, or has been paid for, not less than 60% of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. The DOL’s proposal -- a new section 825.205(d) -- would bring the regulations current with the legal requirements. In addition, the proposal:

defines monthly guarantees for airline employees and “line holders” (e.g., flight crew employees who are not on reserve status);
defines how to calculate “hours worked” and “hours paid;” and
adds recordkeeping requirements for employers of airline flight crews.

Additional Changes to FMLA Regulations

Increments of Intermittent FMLA Leave (§ 825.205): Section 825.205(a) of the 2008 regulations defines the minimum time increment that can be used for FMLA intermittent or reduced schedule leave as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. The NPRM stresses that an employee’s entitlement should not be reduced beyond the actual leave taken. The proposed change would add language to paragraph (a)(1) that provides an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.

The NPRM suggests that when an employee elects to substitute paid leave for FMLA unpaid leave and the employer has a policy of offering paid leave in larger increments of time than unpaid leave, the employer can require the employee to use more FMLA leave than necessary in order to get the benefit of wage replacement. However, says the DOL, the employee can elect to take the shorter increment of leave without pay to avoid drawing down the FMLA entitlement.

Section 825.205(a)(2) of the 2008 regulations provides that when it is physically impossible for an employee to commence or end work midway through a shift, the entire period that the employee is forced to be absent is counted against the employee’s FMLA leave entitlement. The DOL proposes to either (1) delete this language; or (2) add language to establish that it is the employer’s responsibility to restore an employee to the same or equivalent position at the end of any FMLA leave as soon as possible.

The NPRM would “clarify” that under Section 825.205(c), overtime hours that are not worked may be counted toward all FMLA leave, not just leave for a serious health condition.

Recordkeeping Requirements (§ 825.300): The proposal would add a sentence to Section 825.300 stressing that employers have an obligation to comply with the confidentiality requirements of GINA. GINA permits genetic information, including family medical history, obtained by the employer in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.

“New” FMLA Forms

The DOL has also issued new forms for FMLA compliance. There is no substantive change in the forms, just the date on the forms, which are now good through February 28, 2015, unless they are changed before then as a result of the NPRM. Even though there are no substantive changes, employers would be best served to make sure that they are using the most recent forms. Available online, these forms are:

WH-380-E (Certification of Health Care Provider for Employee’s Serious Health Condition)
WH-380-F (Certification of Health Care Provider for Family Member's Serious Health Condition)
WH-381 (Notice of Eligibility and Rights & Responsibilities)
WH-382 (Designation Notice)
WH-384 (Certification of Qualifying Exigency For Military Family Leave)
WH-385 (Certification for Serious Injury or Illness of Covered Servicemember For Military Family Leave)

Conclusion

The FMLA will continue to be one of the best intended, most difficult statutes to administer for the foreseeable future. In addition to these proposed changes, courts are coming out with new interpretations of the scope of the FMLA on a regular basis. When faced with anything other than basic FMLA use by an employee, an employer should be sure that the decision-making is based on the most current developments under the law.

How to Stay on the EEOC’s Good Side

Darrell R. VanDeusen

I wrote about this last year, because in 2010, the Equal Employment Opportunity Commission received nearly 100,000 new charges of workplace discrimination, the highest figure ever. In the Baltimore Region, there were approximately 3,300 pending charges and about 13 investigators to handle them. Well, 2011 was another banner year for charges being filed, and particularly in the Baltimore area. The back log still exists and there is no quick fix to solve it. So, what’s an employer (or employer representative) to do? Here are some things to consider.

The EEOC gets a bad rap from both plaintiff and defense lawyers, usually because it takes so long to get a decision. Even mediation can take months to schedule. Faced with a charge, some employers think they can simply refuse to cooperate. That is a bad idea; when the EEOC gets mad, it has the tools at its disposal to get its way nearly all the time. I don’t have a magic wand that will provide a better experience at the EEOC, but I can provide some guidance on how to approach handling an EEOC charge to avoid getting on the EEOC’s bad side.

Getting Notice of the Charge. With an increased workload, the EEOC has taken to giving employers “notice” of a charge being filed, without any actual allegations. This is because, by law, the EEOC needs to give an employer notice of a charge within 10 days of receipt of information constituting allegations of discrimination. In Federal Express v. Holowecki, 552 U.S. 389 (2008) the Supreme Court, largely deferring to the EEOC, said all that is needed to have a “charge” is enough substance so that it be “reasonably construed” as a request for EEOC to take action to protect the employee’s rights. A letter from an employee still needs to be converted into the formal Charge of Discrimination (EEOC Form 5). The EEOC will not send allegations in that form until they have been drafted by an investigator and signed by the charging party, something that can take months. The take away: When you get “notice” of a charge, collect all available information. Make sure nothing is purged. Unless your witnesses are expected to be unavailable in a few months, however, it probably is not necessary to try and draft a response to the charge, particularly because you do not have the allegations anyway.
Consider mediation. When you get the Charge of Discrimination with the allegations, the EEOC will always include a request to mediate. Scheduling mediation will postpone the filing of a response (if the matter is not resolved), and eliminate the need for one if the mediation is successful. It may be a few months before the mediation occurs. You will need to have the investigation into the allegations completed, so you can tell the story accurately at the mediation.
The take away: If you want to resolve the matter and are willing to give up something, mediation is worth considering. Do not, however, go into mediation thinking you will get the charging party to recognize the error of her ways and go home with nothing.
Responding to the Allegations. If mediation is not an option, let the EEOC know when you will respond. It is more important to provide a well-written response than to meet an arbitrary time line. The key to a good response is to tell the story clearly, concisely, and accurately. Include supporting documentation. Sometimes the EEOC sends out “requests for information” seeking lots of information, but that does not mean you need to respond to each request. EEOC investigators will most likely share your response with the employee (and the employee’s lawyer), so keep that in mind if you are comparing the employee’s circumstances with those of co-workers. Be sure to redact personal information like social security numbers.
The take away: This may seem self serving, but responding effectively to the EEOC at this stage involves knowledge of the “rules of the game.” Let knowledgeable counsel do the job for you. It is better to get the facts straight and the story well told out of the gate. If you try to tell a different story later, you can bet that a claim of “pretext” will rear its ugly head, which never ends well for the employer.
Interacting with the EEOC. Be nice, be civil. Realize that 99% of the time you are dealing with a truly over-worked government employee who is just trying to do his or her job, and is looking at a stack of over 200 charges to investigate.
The take away: My mother always told me “you can catch more flies with honey than with vinegar.” B. Franklin “'Poor Richard’s Almanac” (1744).
When the EEOC gets angry. You will not like it. Although it does not happen very often, if the EEOC senses that an employer is not providing the information that it needs to conduct its investigation, it can bring to bear the full force and effect of the Federal Government. Title VII, the ADEA, and the ADA all grant the EEOC broad subpoena power to elicit information relevant to discrimination charges, which the EEOC may enforce in federal court. Federal courts most often will side with the EEOC if it gets to that point.
The EEOC’s subpoena authority does have its limits. For a court to enforce an administrative subpoena, the EEOC must show that “(1) it is authorized to make such investigation; (2) it has complied with statutory requirements of due process; and (3) the materials requested are relevant.” EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 82 (4th Cir. 1995). Thus, in EEOC v. UPMC, 2011 U.S. Dist. LEXIS 55311 (May 24, 2011), the court refused to enforce a subpoena in an ADA case where the EEOC sought corporate-wide information unrelated to the underlying individual charge of discrimination, finding that the subpoena “constitutes a ‘fishing expedition’ to discover the existence of other potential claimants rather than a reasonable effort to develop information that is relevant to [the] . . . charge.”
The take away: Avoid facing an EEOC subpoena; respond to inquiries from the EEOC with an eye toward compliance. If you believe that the EEOC is over-reaching, and it sometimes does, be sure to consult counsel familiar with the process to make the experience as (relatively) painless as possible.

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