On November 17, 2008, the U.S. Department of Labor (“DOL”) published a final rule implementing amendments to the regulations interpreting the Family Medical Leave Act (“FMLA”). The new regulations become effective January 16, 2009. These are the first significant revisions to the FMLA regulations since the law was enacted fifteen years ago and will affect all employers subject to the FMLA.  

The amended regulations clarify several aspects of the FMLA and implement the new military family leave provisions added to the FMLA earlier this year by the National Defense Authorization Act (“NDAA”). The new regulations span over 750 pages, but the most significant aspects include the following:  

Changes in Notice Requirements  

  •  FMLA-eligible employees must now follow their employer’s call-in policies regarding absences, if their employer has such policies, unless there are exigent circumstances.  
  • Employers will now need to use two forms: the first will tell employees of their FMLA eligibility and rights; the second will formally designate the leave as FMLA leave.  
  • Employers will now have five business days to give eligibility notice to qualified employees, as opposed to two business days.  
  •  Employers can now provide retroactive designation of leave so long as the delay does not cause any harm to the employee. However, if retroactive designation causes harm to the employee, employers are liable for any actual harm caused by the delay. Alternatively, employees and employers can agree that leave be retroactively designated as FMLA leave.  

Clarification in definition of “serious health condition”  

  •  To meet the definition of serious health condition that requires an employee to have a condition involving more than three consecutive days of incapacity plus “continuing treatment,” employees must visit a health care provider within the first seven days of the start of the incapacity and must have a second visit within 30 days of the start of incapacity.  
  • To qualify for a “chronic serious health condition,” employees must make at least two visits per year to a health care provider.

Past Service & 12-Month Eligibility Requirement  

  •  In determining whether an employee meets the 12- month eligibility requirement, employers must count employment periods as far back as seven years. Employment periods need not be consecutive.  
  •  Exception: Employers must look back indefinitely if the employee’s break in service was due to military service, or where the employer and employee agree to do so.  

Changes Regarding Medical Certification Requirement  

  • Employers may contact health care providers to verify or authenticate a medical certification, provided they have the employee’s permission.  
  •  Employers must use either a human resources professional, a health care provider, a leave administrator or a management official to contact an employee’s health care provider, and under no circumstances should the employee’s direct supervisor be the person contacting the health care provider.  
  • If an employer deems a medical certification incomplete or insufficient, the reasons must be stated in writing and the employee must be given seven days to cure any deficiency.  
  •  Employers may require a fitness-for-duty certification before an employee on intermittent FMLA leave may return to work.  
  •  Employers may link return-to-work certification to essential job functions provided that they include the essential job functions in the original designation letter.  

Other Changes of Significance  

  •  The time an employee spends performing “light duty” work does not count toward that employee’s FMLA leave.  
  •  Employers may deny “perfect attendance” awards and certain production incentives to employees who do not have perfect attendance due to FMLA leave, so long as the employer treats employees taking non-FMLA leave the same.

The NDAA amended the FMLA in one important way:

Qualifying exigency leave  

  • “Qualifying exigency” is defined 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 not encompassed in the other categories but agreed to by the employer and the employee.

Some of the aspects of the FMLA that have not changed:  

  •  Who is a covered employer (as determined by the number of employees)  
  • “Intermittent leave” is measured by using the payroll system’s smallest increments, but no larger than one-hour periods  
  •  Self-care is permitted for “chronic serious health conditions”  
  •  Psychological care for covered family members is permitted  
  • Employers cannot require that an employee sign a medical release as a condition of FMLA leave.