The Department of Labor (DOL) recently published a new set of Family Medical Leave Act (FMLA) regulations, the first significant changes since the current regulations implementing the FMLA were issued in April 1995. The new regulations took effect on January 16, 2009. These new regulations implement the new forms of military FMLA leave and make many other significant changes. The new FMLA regulations have both good and bad news for employers.  

Some good news:

  • Employers may provide a list of essential job functions and require the employee’s health care provider to specify which functions the employee is unable to perform.
  • Employers may contact the employee’s health care provider directly for purposes of authenticating or clarifying a certification, and the employee must provide any HIPAA authorization necessary for that communication to occur (or leave is unprotected).
  • Employers may require the health care provider to certify that the employee’s absence pattern is consistent with the serious health condition.  
  • Employees must answer questions about: (a) why they failed to give 30 days notice of foreseeable leave, and (b) why they need leave on an intermittent or reduced-schedule basis.  
  • Calling in “sick,” without documentation, is not sufficient notice for FMLA protection.  
  • Employees may settle and waive FMLA claims based on past employer conduct, without approval of a court or the DOL. Waiver of prospective claims remains impermissible.  
  • Employers may require fitness-for-duty certifications upon a return from intermittent leave, but not more than every 30 days and only if reasonable safety concerns exist.

The bad news:  

  • The definition of “serious health condition” remains convoluted and utterly impractical to apply.  
  • Employees may continue to take FMLA leave on an intermittent basis, with little or no notice, for alleged “chronic” conditions.  
  • Employees may continue to receive paid health care while on FMLA leave and then fail to return to work at the conclusion of leave.  
  • Second and third opinions must still be provided by a health care provider that is not employed by the employer on a regular basis.  

What does this mean for employers? Employers should: (1) learn the new regulations; (2) implement Military Caregiver Leave immediately; (3) implement Qualifying Exigency Leave immediately; (4) update handbooks and other written polices to include the new military leave provisions and comply with the new regulations; (5) prepare new notice and certification forms; (6) ensure that an adequate tracking system for FMLA leave exists; (7) adopt policies requiring use of paid leave concurrently with FMLA leave; and (8) train HR, managers, and supervisors regarding the new regulations.