On Nov. 17, 2008, the Department of Labor (“DOL”) published its final Family Medical Leave Act ("FMLA") regulations. These regulations update the 15-year-old Act and will take effect Jan. 16, 2009 (60 days from the date of publication). These final regulations, which were adopted after a lengthy comment period, are substantially similar to the proposed regulations distributed by the DOL earlier this year.  

The final regulations address a few of employers’ concerns with the proposed regulations, and also include guidance regarding the amendments to the FMLA by the National Defense Authorization Act (the “NDAA”) enacted in January 2008. Areas that are addressed by the final regulations include:  

  • Military Caregiver Leave
  • National Guard and Reserve Personnel Leave
  • Definition of Serious Health Condition
  • Substitution of Paid Leave for Unpaid FMLA Leave
  • Employer Notice Obligations
  • Medical Certifications
  • Employee Call-Out Procedures
  • Fitness for Duty Certifications
  • FMLA Leave Eligibility  

As stated above, the final regulations will become effective 60 days after the date they were published. Accordingly, we recommend that employers begin to take action to update their FMLA procedures, policies, notices and summary plan descriptions to comply.