FMLA Final Rules Issued

On November 17, 2008, the U.S. Department of Labor (DOL) issued the new final regulations for the Family and Medical Leave Act (FMLA) to replace the original 15-year-old one. The new regulations will take effect on January 16, 2009, and will require every employer to display a new version of the FMLA poster.

With regard to military leave, the new FMLA rule include:
Military Caregiver Leave: The new rule expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty. These family members may take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves: Under the new rule, employees with a covered family member on active duty may also take up to 12 weeks of FMLA job-protected leave for a “qualifying exigency”, which include short-notice deployments, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and additional activities where the employer and employee agree to the leave

Other changes include:
The Ragsdale Decision/Penalties: The new rule removes the so-called "categorical" penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee has already taken 30 weeks of leave) and holds employers liable if an employee suffers individual harm because the employer did not follow the FMLA rules.

Waiver of Rights: The new rules state that employees may settle their FMLA claims out of court with the employer, even without departmental approval. However, prospective waivers of FMLA rights are still illegal.

Serious Health Condition: The new rules also provide guidance on the definition of "serious health condition." They clarify that if an employee is taking leave that contains more than three calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the start of the incapacity and the first visit must take place within 7 days of the first day of incapacity. In addition, according to the new rules, employees with chronic serious health conditions must visit a healthcare provider at least twice per year.

Light Duty: In at least two court cases, judges have ruled that an employee can use up his or her 12-week FMLA leave while on a "light duty" assignment. But under the new rules, time spent in "light duty" work can’t be counted toward any portion of the 12 weeks of FMLA, and if an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

Perfect Attendance Awards: Under the new rules, an employer can deny perfect attendance awards to employees who take FMLA leave. But if employees on other types of leave get the perfect attendance awards, the awards must also be paid to those on FMLA leave.

Employer Notice Obligations: All employer notice requirements have been clarified in a "one-stop" section in the new regulations in order to clear up some conflicting provisions and time periods.

Employee Notice: Under the previous regulations, employees were allowed to notify their employers of their need for FMLA leave up to two business days afterwards, while under the new rules, employees must follow the employers’ usual and customary call-in procedures, unless there are unusual circumstances.

Medical Certification Process (Content and Clarification): The new rules add a requirement to make clear the group of persons who may have contact with an employee’s healthcare provider on behalf of the employer to obtain medical certifications, and an employee's direct supervisor is forbidden to have such contact.

According to Victoria A. Lipnic, Assistant Secretary for the Employment Standards Administration, these changes have been carefully weighed. “This common sense, balanced rule is the product of a two year-long transparent process involving about 20,000 public comments and reflects the careful consideration of the views of FMLA stakeholders,” said Victoria Lipnic.

The new FMLA rules will help both employees and employers better understand their rights and responsibilities. At the same time, they will speed the implementation of a new law that expands FMLA coverage for military family members.
As an employer, you will be required to post a new federal Family and Medical Leave poster and modify your current FMLA policies to stay in compliance with the new regulations.