The New FMLA Regulations

The New FMLA Regulations

New regulations under the federal Family and Medical Leave Act (FMLA) will take effect on January 16, 2009. The regulations are lengthy, spanning more than 700 pages. Here are some highlights.

Continuing Treatment

The concept of “continuing treatment from a health care provider” is an important part of the definition of a “serious health condition,” which in turn is a prerequisite for most types of FMLA leave. Continuing treatment now requires a visit to the health care provider within seven days of the first day of incapacity, two visits within thirty days (absent extenuating circumstances that prevent a timely follow-up), and, with a chronic condition, at least two visits per year.

Employee Eligibility

To be eligible for FMLA leave, an employee must have been employed with the employer for at least twelve months and worked at least 1,250 hours during that time. The new regulations clarify, however, that the twelve months of service need not be consecutive. Prior service without an absence of seven years or longer must be counted toward the twelve month goal. Additionally, if an employer permits an employee to take non-FMLA leave (such as a general leave of absence) before an employee is eligible for FMLA leave, and the employee becomes eligible while on the non-FMLA leave, the leave taken before eligibility does not count toward the twelve week per year FMLA allotment. Rather, the employee in this situation would be entitled to the non-FMLA leave plus the full twelve week FMLA allotment.

Holiday Calculations

Counting holidays towards the FMLA leave allotment depends on timing of the leave taken. The holiday will count toward the allotment if the employee is taking a full week of FMLA leave during the week with a holiday. But if an employee takes less than a full week of FMLA leave during a week with a holiday, the holiday will not count toward the FMLA allotment unless the employee otherwise would have been required to work on that holiday.

Light Duty

An eligible employee may accept light duty instead of taking FMLA leave. If the employee does so, the light duty work does not count against the employee’s twelve week FMLA allotment. Essentially, the employer’s FMLA obligations are deferred until the light duty assignment is completed or the twelve month period in which the FMLA leave is taken has ended.


Authentication and Clarification of Medical Certifications

Select employer representatives now may contact an employee’s healthcare provider directly for purposes of authenticating information on a medical certification form without obtaining an employee’s permission. Subject to HIPAA restrictions, select employer representatives also may contact the health care provider for purposes of clarifying information provided on the certification.

Notice Requirements

Under the new regulations, an employee must adhere to the employer’s usual and customary notice requirements for requesting foreseeable FMLA leave. This can include written notice. An employee’s failure to comply can be grounds in some instances for delaying or denying the requested FMLA leave. Employers, on the other hand, still must provide written notice to employees of FMLA rights by posting and in handbooks or other policy statements provided at the time of hire. Additionally, employers are required to give written notice of employee rights, eligibility and the designation of FMLA leave within five business days of becoming aware of the employee’s need for leave.

Military Service Member-Related Leave

The new regulations explain the various rights and responsibilities under the National Defense Authorization Act, which extends FMLA-like leave for eligible employees (i) to tend to exigencies arising from a service member’s call to duty, and (ii) to care for a family member who becomes ill or injured as a result of military service.

These regulatory changes reflect an intensive effort to balance existing burdens between employers and employees without constricting the basic rights Congress granted more than fifteen years ago. For those dissatisfied on either side, the complaints largely belong with the 1993 Congress, not the regulatory scheme now. However, these regulations do heighten the importance of employers carefully maintaining precise records about FMLA leave, employee eligibility, and employer/employee compliance. In most instances, it is the employer’s obligation to justify actions taken.

Posted by Thamer E. "Chip" Temple III.

Employment Law Overview

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