Today, the U.S Department of Labor (“DOL”) is expected to publish a final rule updating the Family and Medical Leave Act (“FMLA”) regulations. The new rules are designed to help workers and employers better understand their rights and responsibilities under the FMLA and implement the new FMLA coverage provisions for military family members. Having reviewed more than 20,000 public comments on the FMLA over the last two years, the DOL believes that the new regulations bring common sense reforms to the workplace. Among other significant changes, the following key provisions are addressed in the final rule:

Military Caregiver Leave: The final rule implements the requirements to expand the FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty. These family members are entitled to take up to 26 workweeks of leave in a 12-month period. The 26 workweeks is the total leave entitlement period. It is not in addition to the “normal” 12-week period. Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs. The new rule defines “qualifying exigencies” as: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities where the employer and employee agree to the leave.

Waiver of Rights: The new rule confirms the DOL’s long-standing position that employees may voluntarily settle their FMLA claims without court or DOL approval, but may not waive a right to sue. In addition, a prospective waiver of FMLA rights will continue to be prohibited.

Light Duty: An employee’s time spent in “light duty” work does not count against his or her FMLA leave entitlement. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

Serious Health Condition: While the new rules retain the six individual definitions of "serious health condition," they provide some guidance. First, the rules clarify that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.

Employer Notice Obligations: The rule consolidates all the employer notice requirements into a “one-stop” section of the regulations to clear up some conflicting provisions and time periods.

Employee Notice Requirements: The rule modifies the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rule, the employee must follow the employer's normal and customary call-in procedures, unless there are unusual circumstances.

Medical Certification: The final rule recognizes the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of HIPAA's medical privacy rule to communications between employers and employees' health care providers. Responding to concerns about medical privacy, the rule adds a requirement that limits who may contact the health care provider and bans an employee's direct supervisor from making the contact.

In response to the new regulations, Frank Del Barto recommends that clients update their FMLA policies to include the new military leave provisions and review their internal leave request, certification and approval procedures.