On November 17, the U.S. Department of Labor (DOL) published regulations under the Family and Medical Leave Act (FMLA). These new regulations go into effect on January 16, 2009. According to Al Robinson, a shareholder with the firm’s Washington, D.C. office and the former acting Administrator of the DOL’s Wage and Hour Division (which enforces laws such as the FMLA): “The new regulations will change the provision of family and medical leave in the workplace, particularly the new basis for leave for families of individuals in the military. As a result, employers must become familiar with these changes and adjust their policies accordingly.”

The DOL also has provided on its website a fact sheet on the new regulations and the new forms (which appear at the end of the regulations).

Revisions to Existing FMLA Regulations

Among the many provisions and changes of the final regulations, some highlights include:

Definition of Serious Health Condition. The final regulations reorganize the various definitions of a “serious health condition,” although the DOL concluded that “no regulatory alternative” exists to define what constitutes a “serious health condition.” While the DOL retains six definitions of “serious health condition,” the federal agency modified the tests of “incapacity and treatment” as follows:

  • For continuing treatment involving two or more doctor visits, those visits now must occur within 30 days of the start of the incapacity.
  • The first visit with a health care provider (whether then followed by a successive visit within 30 days or a regimen of treatment such as antibiotics) must occur within seven days of the start of the incapacity.

Also, the “chronic condition” definition of serious health condition now requires periodic visits of at least twice a year for treatment of the incapacity.

Process of Obtaining a Certification. If a certification is incomplete or insufficient, the final regulations require the employer to give the employee written notice of the additional information needed and allow the employee seven days to cure the deficiency. Also, while a manager or HR professional can contact an employee’s health care provider to clarify or authenticate a certification, the employee’s immediate supervisor may not. The fitness-for-duty certification may address the specifics of any employee’s ability to perform the essential functions of the job.

Notice Requirements. In its final regulations, the DOL consolidated into one section the notices an employer may be required to provide as follows: (1) general notice; (2) eligibility notice (an employer now has five, instead of two, business days to provide); (3) rights and responsibilities notice; and (4) designation notice.

Also, the final regulations contain another section of the notice that an employee must provide, and permit an employer to require an employee to comply with its normal and customary notice and procedural requirements for requesting FMLA leave, unless there are unusual circumstances.


  • The final regulations would permit the disqualification of employees from perfect attendance awards or other bonuses because they are absent due to FMLA leave if such awards are not paid to employees on leave for non-FMLA reasons.
  • The DOL reiterates that an employee can settle, waive or release FMLA claims based on past employer practices without DOL supervision or participation. However, an employee cannot waive or settle their FMLA prospective rights.
  • While FMLA leave is unpaid leave, the final regulations clarify that an employer may require compliance with the procedural requirements of a paid leave benefit when substituting paid leave of any type for unpaid FMLA leave.

Military Family Leave Entitlements

The more significant aspects of the DOL’s regulations are its implementation of the active duty and military caregiver leave provisions under the FMLA. In addition to the comments, the DOL consulted the Departments of Defense (DOD) and Veterans Affairs (VA) to formulate the final regulations for these two very important military leave entitlements.

Active Duty Leave

The DOL’s final regulations identify eight circumstances that constitute a qualifying exigency for which an eligible employee is entitled to FMLA leave while that employee’s spouse, son, daughter or parent is on active duty or call to active duty status, as follows: (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.

In addition, the regulations define a number of terms that apply specifically to the active duty leave, including “covered military member” and “son or daughter on active duty.”

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 final regulations define a number of terms, such as “covered servicemember” and “serious illness or injury.” Also, the DOL’s regulations state that the leave entitlement 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 FMLA leave.

Just as with active duty FMLA leave, an employer may require certification from an employee seeking military caregiver FMLA leave. The regulations specify that a DOD or VA health care provider may complete the certification.

Additional Resources

These are just some highlights of the additions/changes to the FMLA, including the active duty and military caregiver FMLA leaves, that are contained in yesterday’s publication in the Federal Register.

Look for a detailed article discussing the new FMLA regulations in an upcoming issue of The Employment Law Authority, as well as other programs (including a webinar on December 8) to guide employers as they plan for these changes.

For more information on these new regulations, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department via email at clientservices@ogletreedeakins.com or by phone at 866-287-2576.

Note: This article was published in the November 18, 2008 issue of the National eAuthority.

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