The Department of Labor released the new Family and Medical Leave Act regulations today. It is expected that the final regulations will become effective on January 16, 2009.
The final regulations impact FMLA terms that employers deal with on a daily basis such as what constitutes a serious health condition. Historically, employees have been able to obtain leave when they are incapacitated for more than three consecutive calendar days and require treatment, the so called "absence plus treatment" rule. The regulations were silent on the timing of the treatment. The new regulations clarify that the first treatment must take place within seven days of the first day of incapacity. In the case of treatment two or more times (that does not result in a continuing regimen), the treatment must occur within 30 days of the first day of incapacity absent extenuating circumstances. Similarly, the new regulations define the required timing of periodic visits for chronic conditions. Treatment visits for chronic serious health conditions must now occur at least twice in a year.
The final regulations also contain the much anticipated and much needed regulations to accompany the FMLA Amendments relating to service members signed into law by President Bush in January. The Amendments provided for leave in the event of a "qualifying exigency" that was undefined by the Amendment itself. According to the new regulations, a qualifying exigency can include: 1) short notice deployment, 2) military events and related activities, 3) child care and school activities, 4) financial and legal arrangements, 5) counseling, 6) rest and recuperation, and 7) post-deployment activities.
The January Amendments also included provisions for the care of covered service members by their "next of kin." The list of family members who qualify as next of kin is lengthy. The regulations allow for multiple family members within the same level of relationship to the covered service member to take FMLA to provide care and they may do so either consecutively or simultaneously. To the extent, however, that the covered service member specifically designates a blood relative for purposes of care giving leave, the employer is only required to approve leave for the designated family member.
As the above examples indicate, the changes contained within the new regulations are significant.