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New FMLA Regulations in Effect

January 21, 2009
by: Tanya A. Salgado, Esq.

On January 28, 2008, President Bush signed into law the first amendments to the Family and Medical Leave Act since the law was enacted in 1993. The amendments to the FMLA provide for new leave entitlements for employees whose immediate family members are members of the armed forces. The amendments allow eligible employees to take military caregiver leave, as well as “qualifying exigency” leave. However, Congress delegated to the Department of Labor the task of drafting regulations which would provide the necessary definitions to comply with the law regarding “qualifying exigency” leave. In the interim, employers were encouraged to provide such leave, but were not required to do so.  

On November 17, 2008, the Department of Labor issued important new regulations which address the military family leave amendment to the FMLA, as well as making a number of changes to the existing FMLA regulations.  The new regulations are now effective.  

The new regulations provide clarification to many of the former provisions in response to certain court rulings, as well as in response to feedback from various stakeholders and public commentary.

Some highlights of the new regulations include the following.

Serious Health Condition

The new regulations modify the test for a serious health condition in connection with those periods of incapacity involving “continuing treatment.” The FMLA permits leave for any period of incapacity involving absence from work, school, or other regular daily activities of more than three calendar days, that also involves continuing treatment by a health care provider.  Under the new regulations, “continuing treatment” requires either (a) two or more treatments by a health care provider, which now must occur within 30 days of the start of the incapacity;  or (b) one treatment by a healthcare provider which results in a regimen of continuing treatment under the supervision of the health care provider.  In both cases, the first visit with a health care provider must be an in-person visit, and must occur within seven (7) days of the start of the incapacity.   The regulations further clarify that the initial period of incapacity must be more than three consecutive, full calendar days.

Chronic Health Condition

The FMLA also permits leave for any period of incapacity or treatment due to a chronic serious health condition, which requires periodic visits.  The new regulations provide that “periodic visits” for chronic serious health conditions must include at least two visits to a health care provider per year. 

Medical Certification

The new regulations also address the issue of the process of obtaining a medical certification.  If a certification is incomplete or insufficient, the new 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 human resources professional may contact an employee’s health care provider to clarify or authenticate a certification, the employee’s immediate supervisor may not.  However, employers may not ask health care providers for additional information beyond that required by the certification form.  Employers are also cautioned to keep in mind that the Americans with Disabilities Act provisions limiting medical inquiries also apply, which strictly limit medical inquiries by employers.

Perfect Attendance Awards

The new regulations permit employers to deny a “perfect attendance” award to an employee who does not have perfect attendance due to taking FMLA leave, provided that the employer treats employees taking non-FMLA leave in an identical way.

Military Family Leave

In addition to the various changes made throughout the regulations, the regulations include new provisions implementing the FMLA amendments providing for military family leave.  

Military Caregiver Leave

The FMLA now provides for up to 26 weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness.  Under the new regulations, an eligible employee is entitled to a combined total of 26 work weeks of leave for any FMLA-qualifying reason; however, an employee is entitled to no more than 12 weeks of leave for reasons under the other FMLA provisions.  Thus, for example, an eligible employee may take 16 weeks of FMLA leave to care for a covered service member, and 10 weeks of FMLA leave to care for a newborn child, all within a single 12-month period. 

Under the law, eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces who has a serious injury or illness incurred in the line of duty for which he or she is undergoing medical treatment, recuperation, or therapy, or on the temporary disability list. A “serious injury or illness” means an injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office.  Employees may not take leave to care for former members of the Armed Forces, or members on the permanent disability retired list. 

In order to be entitled to military caregiver leave, an eligible employee must be the spouse, son, daughter, parent, or next of kin of a covered service member.  This provision differs from other parts of the FMLA, in that it includes “next of kin.” “Next of kin” of a covered service member is the nearest blood relative, other than the spouse, parent, son or daughter.  The regulations provide an order of priority for making the determination. 

Intermittent leave may be taken to care for a covered service member who has a serious injury or illness.  Intermittent leave may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered service member with a serious injury or illness. 

The employee is required to obtain a medical certification providing that the employee is “needed to care for” a covered service member, and the Department of Labor has issued a certification form in the new regulations. 

Qualifying Exigency Leave

The second category of military family leave is meant to help families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation.  Unlike military caregiver leave, qualifying exigency leave is limited to 12 weeks in a 12-month period.  The new 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 called to active duty status, as follows:   

  1. short-notice deployment (to address any issues that arise from the fact that a military member is notified of a call to duty on short notice);
  2. military events and related activities (official ceremonies or events sponsored by the military that are related to the active duty, or to attend family support programs sponsored by the military that are related to active duty);
  3. childcare and school activities (to arrange for alternative childcare when call to duty necessitates a change in existing childcare arrangements, or to provide childcare on an urgent need basis due to a call to active duty);
  4. financial and legal arrangements (to make arrangement to address military member’s absence while on active duty, such as preparing powers of attorney, transferring bank account signature authority, or preparing or updating a will);
  5. counseling (to attend counseling the need for which arises from the active duty status);
  6. rest and recuperation (up to five days for each period of rest and recuperation leave);
  7. post-deployment activities (to attend ceremonies, briefings and events); or
  8. additional activities (a catchall category to address other events that arise out of the military member’s active duty status, provided that the employer and employee agree that such leave shall qualify as an exigency and agree to the timing and duration of the leave).

Conclusion and Recommendations

Employers who are subject to the FMLA will need to familiarize themselves with the new regulations and update their policies and procedures, including Employee Handbooks, to comply with the changes. In addition, the Department of Labor has issued new certification and notice forms in connection with the new regulations, and employers will need to update all FMLA forms to comply. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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