New FMLA Rules and Requirements as of January 16, 2009

By Craig M. Brooks

Extensive new regulations under the Family and Medical Leave Act (FMLA) went into effect January 16, 2009. These regulations, nearly 200 pages in length, contain many changes and clarifications in the way employers must and can administer employee leave under this law. The new regulations implement new leave provisions for military servicemembers. The new regulations also contain numerous changes on the administration of time off work for all categories of leave covered under the FMLA, including various improvements for employers. For example, the time period for notice to employee that their absence is being credited against their FMLA allotment has been expanded (from two to five business days, which can start from the receipt of medical certification). Some of the highlights are listed below.

Serious Health Condition. The regulations reorganize the various definitions of serious health condition and modify the tests for incapacity and treatment. A chronic serious health condition is one that now requires an employee to visit a healthcare provider at least twice a year.

Perfect Attendance Awards. Employers may now deny perfect attendance awards to employees who did not have perfect attendance because they took FMLA leave, but the employer must treat employees taking non-FMLA leave in the same way as the employees taking FMLA leave. Waiver. Employees may now waive claims based upon past violations of the FMLA but cannot waive their prospective rights.

Substitution of Paid Leave. Employees may substitute accrued paid leave for FMLA leave but the terms and conditions of an employer’s paid lave policy must be followed for that substitution.

Employer Notice Requirements. Employer notice obligations have been consolidated into one section with significant changes. Employers now have to provide a general notice, eligibility notice, rights and responsibility notice and designation notice.

Military Family Leave Entitlements. Active Duty Leave: The new regulations identify eight circumstances that constitute a qualifying exigency for which an employee is entitled to FMLA leave while that employee’s family member is on active duty or called to active duty, as follows: short-notice deployment; military events and related activities; childcare and school activities; financial or legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities as agreed upon between employee and employer. Military Caregiver Leave: This entitlement affords an employee 26 weeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period. The new regulations clarify that this leave applies on a per-covered servicemember, per injury basis and the 12-month period begins with the first day an eligible employee takes military caregiver leave.

Please contact Craig M. Brooks, if you have any questions on FMLA regulations or if you need assistance with compliance.