The United States Department of Labor's updated final rules regarding the federal Family and Medical Leave Act of 1993 ("FMLA") became effective on January 16, 2009. These new regulations update the previous FMLA regulations issued in 1994 and also provide details regarding the military family leave provisions added to the FMLA in 2008. The following summarizes some of the more significant changes and clarifications contained in the new regulations:

  • Employer Notice Obligations: Employers covered by the FMLA are required to post in the workplace a general notice explaining the FMLA's provisions and providing information regarding the procedures for filing complaints with the US Department of Labor, Wage and Hour Division. Sample FMLA posters are located on the US Department of Labor's website. In addition, for covered employers who have any FMLA-eligible employees, the employers also must provide this general notice in their employee handbooks or other written benefits or leave materials (if such written materials do not exist, the notice must be provided to employees upon hiring). The regulations clarify that these general notices may be provided by an electronic notice if all employees and applicants for employment have access to the information electronically. The regulations also clarify that covered employers must post a general notice even if they have no FMLA-eligible employees. The regulations contain a sample notice that may be used by employers as the general notice—employers may instead use another format provided that it includes, at a minimum, all of the information contained in the sample notice. Since the sample notice contains information that had not typically been included in employer FMLA policies, employers will need to update their employee handbooks or other written materials regarding the FMLA, as well as their FMLA posters.
  • The regulations generally require employers to provide an eligibility notice and a notice of rights and responsibilities to employees within five (5) business days of any request for leave or after learning that a leave may qualify as FMLA-leave—the prior regulations required notice to be provided within two (2) business days. If the employee is not eligible for FMLA leave, the regulations require the eligibility notice to state at least one reason why the employee is not eligible for such leave. The regulations contain a new suggested, combined form for these purposes—Notice of Eligibility and Rights and Responsibilities.
  • The regulations also require employers to provide a notice designating the leave as FMLA leave within five (5) business days (previously two (2) business days) after receiving sufficient information to determine whether the leave qualifies as FMLA leave. The regulations contain a new suggested form for this purpose—Designation Notice. The designation notice may be provided at the same time as the eligibility and rights and responsibilities notices if the employer has sufficient information at that time to designate the leave as FMLA leave.
  • The regulations provide that an employer's failure to comply with the FMLA's notice requirements may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights. As such, the employer may be liable for damages if the affected employee demonstrates that he or she has suffered individualized harm. Under the prior regulations, an employer's failure to designate leave as FMLA leave within two (2) business days of the employee's request for leave precluded the employer from designating such leave as FMLA leave. The US Supreme Court, however, rejected that portion of the prior regulations as inconsistent with the statutory provisions of the FMLA.
  • Employee Notice Obligations: The regulations generally retain the requirement that employees provide 30 days notice whenever the need for leave is foreseeable. The regulations now also provide that, if 30 days notice is not practicable (e.g., because of changed circumstances or medical emergency), employees must provide notice as soon as practicable. If an employee provides less than 30 days notice where the leave for need was foreseeable and the employer so requests, the employee must explain why the 30 days notice was not practicable. In addition, the regulations provide that employees needing FMLA leave may be required to follow the employer's usual and customary call-in procedures for reporting an absence, absent unusual circumstances—the old regulations permitted employees to provide such notice up to two (2) full business days after an absence, even if the employees could have provided such notice more quickly.
  • Eligible Employees: In order to take FMLA leave, employees must have been employed for at least 12 months and have worked at least 1,250 hours in the 12 months immediately preceding the requested leave.  
  • The regulations clarify that although the 12 months of service need not be consecutive, employment prior to a break in service of seven (7) years or more need not be counted (except if the break resulted from National Guard or Reserve service obligations or a written agreement exists concerning the employer's intention to rehire the employee after the break in service).  
  • The regulations also clarify that employees on leave who have not satisfied the 12-month employment requirement may satisfy this requirement and therefore become FMLA eligible during the leave period—i.e., since the employee is still considered employed while on leave, the employee may satisfy the 12-month requirement while out on leave. Any portion of the leave taken after the employee becomes eligible is treated as FMLA leave.
  • Military Family Leave: The 2008 amendments to the FMLA added new leave entitlements for eligible employees to take Military Caregiver Leave (also known as Covered Servicemember Leave) and Qualifying Exigency Leave.
  • Eligible employees may take up to 26 workweeks of unpaid Military Caregiver Leave in a "single 12-month period" to care for a family member who is a "covered servicemember" with a serious illness or injury incurred in the line of duty on active duty.
  • Eligible employees with a covered military member serving in the National Guard and Reserves may take the normal 12 workweeks of unpaid FMLA leave for "any qualifying exigency" arising out of the fact that the covered military member is on active duty or called to active duty status in support of a "contingency operation."
  • The Regulations discuss the following eight categories of "qualifying exigencies:" (i) Short-Notice Deployment; (ii) Military Events and Related Activities; (iii) Childcare and School Activities; (iv) Financial and Legal Arrangements; (v) Counseling; (vi) Rest and Recuperation; (vii) Post-Deployment Activities; and (viii) Additional Activities Not Encompassed in the Other Categories.  
  • The Regulations include two new certification forms that can be used for military family leave: Certification of Qualifying Exigency for Military Family Leave; and Certification for Serious Injury or Illness of Covered Servicemember.
  • Light Duty: Time spent performing "light duty" work is not considered part of FMLA leave and therefore does not count against an employee's FMLA leave entitlement. In addition, the employee's right to job restoration under the FMLA is held in abeyance during the time the employee performs "light duty" work (or, if earlier, until the end of the applicable 12-month FMLA leave year).  
  • Waiver of Rights: Employees may settle or release any FMLA claims based on past employer conduct without approval of a court or the Department of Labor. Employees, however, cannot prospectively waive their FMLA rights.
  • Serious Health Condition: The Regulations generally retain the same six (6) individual definitions of "serious health condition," with certain modifications.  
  • One of the definitions requires more than three (3) consecutive, full calendar days of incapacity plus "two visits to a health care provider." The Regulations now state that the two (2) visits must occur within 30 days of the beginning of the period of incapacity and the first visit must take place within seven (7) days of the first day of incapacity—the prior regulations did not specify any time period for such visits.  
  • Another definition requires more than three (3) consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The Regulations provide that the first visit to the health care provider must take place within seven (7) days of the first day of incapacity.  
  • A third definition regarding chronic serious health conditions requires "periodic visits" to a health care provider. The Regulations now define "periodic visits" as at least two (2) visits per year—the prior regulations did not specify the requisite number of such visits.  
  • Substitution of Paid Leave: The regulations clarify that an employee may be required to satisfy the same procedural requirements for substituting any accrued paid leave (including vacation, sick, personal or generic "paid time off" leave) that other employees not taking FMLA leave would be required to satisfy (e.g., paid leave being available only in full day increments or only upon completion of a specific leave request form). The regulations also provide that, where state law permits, the employer and employee may agree to use paid leave to supplement disability insurance or workers' compensation benefits—the prior regulations did not permit the use of paid leave during the time that an employee also received disability insurance or workers' compensation benefits.
  • Perfect Attendance Awards: Employers may now deny "perfect attendance" awards to employees who do not have perfect attendance because they took FMLA leave provided that the employer treats employees taking non-FMLA leave in the same way.
  • Intermittent (or Reduced Schedule) Leave: Employees who take intermittent leave for planned medical treatments when medically necessary are required to make a "reasonable effort" to schedule such treatment so as not to disrupt unduly the employer's operations—the prior regulations did not include the "reasonable effort" standard.  
  • Employers must count leave usage in increments no greater than the shortest period of time used for other non-FMLA leaves, provided that such increments can be no greater than one (1) hour. The regulations clarify that an employee's FMLA entitlement cannot be reduced by more than the amount of leave taken by the employee—e.g., if an employee arrives to work several minutes late because of an FMLA-qualifying reason, only several minutes of FMLA leave can be counted against the employee's FMLA entitlement even if the employer normally tracks FMLA and other leave in one (1) hour increments.
  • Employees who are unable to work required overtime hours because of an FMLA-qualifying condition may have such overtime hours counted against their FMLA leave entitlement.  
  • Medical Certification: The regulations contain separate, updated medical certification forms for the employee and covered family members (for applicable family leaves)—Certification of Health Care Provider for Employee's Serious Health Condition; and Certification of Health Care Provider for Family Member's Serious Health Condition. As stated above, there are additional medical certification forms for Military Caregiver Leave and Qualifying Exigency Leave. The Certification forms now allow, but do not require, health care providers to provide a diagnosis of the patient's health condition as part of the certification.  
  • If an employer deems the information in a medical certification to be insufficient, the employer must specify in writing what information is lacking and give the employee seven (7) days to redo the certification.
  • An employer's representative also may contact the employee's health care provider to authenticate or obtain clarification of information contained in the medical certification form. The employer's representative must be a health care provider, human resources professional, leave administrator or management official, but cannot be the employee's direct supervisor. The employer's representative may not request additional information than that required to be included in the medical certification form. The employer must comply with any HIPAA privacy requirements, including obtaining written authorization from the employee where necessary.
  • Employers may require a new medical certification each leave year for medical conditions that last longer than one (1) year. Employers also may request recertification of an ongoing condition every six (6) months in conjunction with an absence.  
  • Fitness for Duty Certification: Employers may require that the certification specifically address the employee's ability to perform the essential functions of the job—if the employers choose to do so, they must provide the employees with a list of the essential job functions at the time of the designation notice and the designation notice must state that this will be a requirement. In addition, where reasonable job safety concerns exist, an employer generally may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.