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DOL Issues New FMLA Regulations

On Nov. 14, 2008, the U.S. Department of Labor finalized new Family and Medical Leave Act regulations, which apply to businesses with 50 or more employees. The new regulations take effect Jan. 16, 2009, and can be found in their entirety here.

We were pleased that the agency adopted our suggestions concerning call-in policies and physician certification of chronic conditions. The regulations also clarify the meaning of certain key terms.

The good news for small business owners is that the new regulations generally give employers more control over employees' leave. The new regulations also specify how to implement a new law, which provides military leave for relatives of service members and National Guard and Reserve members called to service.

Key provisions of the new regulations

Employee qualifications for FMLA:

  • An employer can now require employees to follow the employer's own call-in policies to provide notice of planned leave. Previously, employees could wait until two days after an absence to notify the employer.
  • To qualify for FMLA leave because of a chronic condition, employees now must certify that they visited a doctor at least twice a year regarding that condition.
  • The regulations also clarify what kinds of conditions and treatments qualify as "chronic conditions," "serious health conditions," and "qualifying treatments."
  • Employers may now require returning employees to complete "fitness for duty" tests if there is a possibility that performing the job will raise a significant risk of harm to the employee or others.
  • The new regulations also give additional guidance regarding the substitution of paid leave for FMLA leave and new notice requirements for employers.

The FMLA for military families:

  • There is a 12-month period for leave under the military family provisions. The 12-month period starts when the employee begins to use leave and concludes 12 months later. (Employers cannot require that the 12 months be limited to one calendar year, i.e. January - December).
  • Previously, only spouses, parents and children of service members were eligible for FMLA leave. Now, grandparents, aunts, uncles, first cousins and any relatives that service members designated as next of kin are eligible to take this leave.
  • Relatives may take leave only once per injury. Each qualifying relative may take leave again if the service member relative suffers another injury. Such leave, however, is only available so long as the service member remains in the military.
  • Another new benefit is available to relatives of those called to active duty in the National Guard and the Reserves, who may now take up to 12 weeks of leave in case of a qualifying exigency. Qualifying exigency is broadly defined and may include
    • short notice deployment
    • military events and related activities
    • child care and school activities
    • financial and legal arrangements
    • counseling
    • rest and recuperation
    • post-deployment activities

Miscellaneous changes and clarifications:

  • Employee privacy: In contrast to earlier versions of the regulations, a new provision forbids direct supervisors from obtaining employees' medical information when FMLA certifications are needed. This provision is intended to protect employee privacy.
  • Light duty: Time an employee spends on "light duty" does not count against the employee's FMLA leave entitlement.
  • Intermittent leaves: The new rule also clarifies how employers must treat employees who take intermittent family leave – for example, an employee who takes off two hours every day to take her daughter to cancer treatment. Generally, employers must calculate such leaves in increments of one hour or smaller. Employers must also track intermittent FMLA leave as they would track other types of leave.