New FMLA Regulations in Effect

Since 1993, the FMLA has required employers with 50 or more employees to provide eligible employees with up to 12 weeks of job-protected leave for various reasons related to the employee’s or a family member’s serious health condition or the birth or adoption of a baby.  In early 2008, President Bush signed into law two new grounds for FMLA leave in situations where eligible employees have family members called up for or injured while serving on military duty.

Prior to the 2008 amendments to the FMLA, the U.S. Department of Labor (DOL) had been promising revisions to the FMLA’s regulations for nearly five years.  In February 2008, DOL issued proposed changes to the regulations and thereafter accepted public comment on the changes.  Finally, on November 17, 2008, DOL issued its finalized changes to the FMLA’s rules.

The new regulations both change long-standing FMLA practices and also provide more detail regarding the new forms of FMLA leave for employees with family members serving or injured on military duty.

The 2008 amendments to the FMLA required covered employers to provide eligible employees—those who work where there are at least 50 employees employed within a 75-mile radius and who have worked for at least 12 months and at least 1,250 hours in the previous 12 months—in two new situations: (1) for the employee to deal with qualifying exigencies related to a spouse, parent, or child’s call-up for or service in the National Guard or reserves; or (2) for the employee to care for a spouse, child, or parent, as well as any other related person for whom the employee has been designated next of kin, who has suffered or is recuperating from a serious injury or illness due to military service.  While time off for the first situation (qualifying exigency leave) was to be included in an eligible employee’s 12 work weeks of available FMLA leaving during a 12-month counting period, the new law provided employees with up to 26 weeks of leave in a single 12-month period for the second situation (military care-giving leave).

Employers had been excused from providing qualifying exigency leave because that phrase was not defined in the 2008 law.  DOL’s new regulations now define the “qualifying exigencies” that permit eligible employees to take new job-protected FMLA leave to be situations involving: (1) short-notice deployments; (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 where the employer and employee agree to the leave.

For both new forms of military-related FMLA leave, the DOL has issued model certification forms that employers may require employees who request such leave to fill out in support of the leave request.

More generally, the new FMLA regulations require employer attention at least in the following areas:

1) Postings and written policies:  DOL has revised its model posting that employers are required to have posted in their workplaces.  Additionally, employers with written FMLA policies should update the policies to reflect the changes to the FMLA regulations.  Covered employers who do not have written policies regarding FMLA leave, whether in a handbook or otherwise, are now required to provide DOL’s model posting of FMLA rights and information to all new employees at the time of hire.

2) Use of forms:  The new FMLA regulations require employers to provide employees who request FMLA leave with information regarding their eligibility and their various rights and responsibilities under the FMLA and other applicable employer policies (such as how to request or use accrued paid leave time for an otherwise unpaid FMLA leave period).  Employers must also notify employees of FMLA certification requirements and provide a formal notice of whether requested time off will be designated as FMLA leave and counted against the employee’s annual FMLA leave entitlement.  The DOL has developed model forms that employers may use for all of these purposes, including several new certification forms that vary depending on the nature of leave requested.

The new regulations clarify that employees may voluntarily waive or settle their FMLA claims without court approval, such as through a severance and waiver agreement at the time of termination.  Also, the regulations permit employers to deny a perfect attendance award to an employee who missed work because he or she took FMLA leave—but only if employees taking non-FMLA leave are treated the same way.

Space here does not permit a full discussion of all of the changes to FMLA policies and practices required in the new regulations.  Employers subject to the FMLA should take the time to understand or seek counsel on the new regulations to ensure compliance in 2009 and forward.

James B. Thelen, Esq. is a principal in the Lansing office of Miller, Canfield, Paddock and Stone, PLC, where he advises employers on all aspects of labor and employment law.








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