As a reminder, the new Family and Medical Leave Act (FMLA) regulations go into effect January 16, 2009. These regulations contain numerous changes that will affect how public employers administer the FMLA on a day-to-day basis. The failure to comply with certain requirements, such as posting the revised notice, can result in a penalty of up to US$110 for each separate offense.

Following are some of the more significant areas of immediate concern for compliance with the new FMLA regulations.

Employer Notices: The new regulations require employers to provide the following notices.  

  • General Notice: Covered employers are required to keep a written notice explaining employee rights under the FMLA posted in conspicuous places throughout the work site. The general notice must be prominently displayed and easily readable. Under certain circumstances, the general notice can be posted electronically, as long as all employees have access to information in electronic form (we recommend electronic posting in addition to normal posting). The general notice must also be included in the employee handbook or written leave policy (i.e., the collective bargaining agreement), or, if such material does not exist, given to each new employee upon hire. Please note, violations of the general posting requirements can lead to civil monetary penalties of up to US$110 per offense. A suggested form is now available.
  • Eligibility Notice: Covered employers generally must provide an oral or written notice to an employee as to whether that employee is an "eligible employee" under the FMLA within five business days after a request for FMLA leave or after acquiring knowledge that leave may be for a FMLA-qualifying reason. If the employee is ineligible, the notice must provide at least one reason why the employee is ineligible. A suggested eligibility notice form now available.
  • Notice of Rights and Responsibilities: Each time an eligibility notice is provided, an employer must provide written notice detailing the employee's specific expectations and obligations under the FMLA and explaining any consequences of a failure to meet these obligations. A suggested notice is now available.
  • Designation Notice: Generally within five business days of having enough information to determine whether leave qualifies as FMLA leave, an employer must provide notice to the employee as to whether the leave will be designated as FMLA leave, the amount of time that will be counted as FMLA leave and any fitness-for-duty certification requirement along with a list of essential job functions if the employee's ability to perform these functions is to be addressed in the certification. Notice of any change in designation, including exhaustion of leave, must be given within five days of the change. A suggested designation notice form is now available.

The new regulations also contain prototype notices. If an employer distributes its own policy in place of the prototype general notice, that policy must contain at a minimum all the information contained in the notice. Accordingly, in addition to revising FMLA practices to comply with this new framework, employers should review their FMLA policies and revise them as needed.

Military Family Leave: Military family leave consists of two types of leave: (1) military caregiver leave (up to 26 weeks' leave to care for covered family servicemembers suffering from certain serious injuries or illnesses), and (2) qualifying exigency leave (up to 12 weeks' leave for "any qualifying exigency" when certain family members are called for or are on active duty in support of a contingency operation). The new regulations shed light on these types of leave by clarifying that military caregiver leave is limited to caring for current rather than former servicemembers and that qualifying exigency leave does not extend to family members of individuals serving in the Regular Armed Forces. Also helpful, the final regulations list the reasons that constitute a qualifying exigency and detail what is required to certify these types of leave. The following recommended certification forms for Certification for Caregiver Leave and Certification for Qualifying Exigency are now available.

Certifications: The revised certification process allows employers to more easily obtain certain information and provide more certainty in the process. The changes include a firmer timeline; requiring employers to inform employees as to what additional information is required when a certification is incomplete or insufficient; allowing employers, after they have provided an employee with the opportunity to cure a deficiency, to directly contact a health care provider (through certain personnel other than a direct supervisor) for purposes of authentication or clarification; and requiring a new medical certification each "leave year" if a serious health condition persists. Recommended medical certification forms for the serious health condition of the employee or family members are now available.

Additional Changes:

  • Employee Notice: An employer will be able to delay or deny leave when an employee fails to comply with usual notice and procedure requirements when calling off from work, with certain exceptions.
  • Perfect Attendance and Similar Awards: With certain limitations, an employer will be able to disqualify employees from bonuses or awards predicated on achievement of a goal when the employee fails to achieve the goal as the result of an FMLA absence.
  • Increments of FMLA Leave: With certain limitations, an employer will be able to use a one-hour increment to account for FMLA leave, even if capable of using a smaller increment, if it accounts for other types of leave in the same or larger increments. Also, if an employee substitutes paid leave for unpaid FMLA leave and paid leave is required to be taken in a larger increment, then the larger increment may count against the employee's FMLA leave as well.
  • Medical Recertification: An employer will be able to require medical recertification at least every six months when a serious health condition lasts more than 30 days including for a "lifetime," "indefinite" duration or "unknown" duration.
  • Fitness-for-Duty Certification: An employer will be able to require a fitness-for-duty certification every 30 days for an employee who has taken interim or reduced leave during that period if reasonable safety concerns exist based on the employee's serious health condition.
  • Serious Health Condition: The final regulations largely maintain the substance of the current definition with two important clarifications.
    • When an employee establishes a "serious health condition" by showing a period of incapacity of more than three consecutive full calendar days that also involves treatment two or more times, the treatment usually must occur "within 30 days of the first day of incapacity," with the first in-person treatment visit occurring within seven days of the first day of incapacity and with the necessity of additional treatment visits being determined by the health care provider.
    • When an employee establishes a "serious health condition" through a chronic condition, the criterion of "periodic visits" for treatment is now defined as at least twice a year.