Many Employers Still Have Questions

The Family and Medical Leave Act (FMLA) regulations issued late last year by the U.S. Department of Labor (DOL) took 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 the FMLA): “The new regulations change the pro-vision 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 has provided on its website a fact sheet on the new regulations, a revised FMLA poster and new and revised forms (including certification forms under the military family leave provisions).

Revisions To Existing FMLA Regulations

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

“Serious Health Condition” Defined
While the six definitions of “serious health condition” were retained, the DOL modified the tests of “incapacity” and “treatment” as follows:

  • While the number of consecutive calendar days to qualify for protected leave remains at three, they must now be full calendar days.
  • 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) 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 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 may now 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 now may address the specifics of any employee’s ability to perform the essential functions of the job. Also, the regulations clarify that an employer can request a recertification every leave year for any serious health condition that lasts longer than one year.

Notice Requirements
In its final regulations, the DOL consolidated into one section the notices an employer is required to provide and into another section the notice that an employee must provide. An employer may be required to provide the following: (1) general notice; (2) eligibility notice (an employer now has five, instead of two, business days to pro-vide such); (3) rights and responsibilities notice; and (4) designation notice.


  • The final regulations 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 regulations confirm 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 rights prospectively.
  • While FMLA leave is unpaid, the 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

Perhaps the more significant component of the DOL’s regulations is its implementation of the active duty and military caregiver leave provisions under the FMLA. The DOL consulted the Departments of Defense (DOD) and Veterans Affairs (VA) to formulate the final regulations for these two important 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 on call to active duty status. Briefly, these exigencies are:

  • Short-notice deployment. Where the notification of a call or order to active duty is seven days or less, leave can be taken to address any issues.
  • Military events and related activities. This is designed for official military events or family assistance programs or briefings.
  • Childcare and school activities. An eligible employee can take leave for a variety of childcare and school related reasons for a child, legal ward or stepchild of a covered military member.
  • Financial and legal arrangements. Leave is available to an eligible employee to make or update financial or legal affairs to address the absence of a covered military member.
  • Counseling. This is to attend non-health care provided counseling for the employee, military member or child, legal ward or stepchild of the military member.
  • Rest and recuperation. An eligible employee may take up to five days to spend time with a covered military member who is on short-term rest leave.
  • Post-deployment activities. For a period of 90 days after a covered military member’s active duty terminates, an eligible employee may take leave to attend ceremonies, reintegration briefings or other programs.
  • Additional activities. This category covers leave for other events where the employer and the employee agree on the time and duration of the leave.

In addition, the regulations define a number of terms that apply specifically to active duty leaves, 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 service member with a serious injury or illness during a single 12-month period. The final regulations define a number of terms, such as “covered service member” and “serious illness or injury.” Also, the DOL’s regulations state that the leave entitlement applies on a per-covered service member, 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 leave, an employer may require certification from an employee seeking military caregiver FMLA leave. The regulations state that a DOD or VA health care provider may complete the certification.

Note: This article was published in the January/February 2009 issue of The Employment Law Authority.

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