New FMLA Regulations Give More Coverage to Military Families and Change Other Rules of the Game

By R. Joseph Leibovich
Shuttleworth Williams, PLLC
(901) 328-8269
jleibovich@shuttleworthwilliams.com

The Department of Labor issued new regulations to the Family and Medical Leave Act (FMLA) that provide greater coverage for military families while clarifying some long standing FMLA issues. The regulations, which went into effect earlier this year, present employers with significant changes in FMLA related issues.

Generally speaking, the FMLA applies to employers with 50 or more employees, and only employees with one year or more of service to the employer with 1,250 hours of service in the 12 months prior to the leave are entitled to FMLA leave. Under the FMLA, qualified employees are entitled to twelve weeks of unpaid leave during a year:

– for the birth and care of the newborn child of the employee;
– for placement with the employee of a son or daughter for adoption or foster care;
– for the care of an immediate family member (spouse, child, or parent) with a serious health condition; or
– for an employee’s own serious health condition.

Covered Servicemember Leave
Recent changes in FMLA regulations incorporate the National Defense Authorization Act for FY 2008 (NDAA). Under the new regulations, there are two types of new leave. The first is for family members of covered members of the armed services due to that service member’s serious illness or injury that was incurred in the line of active duty. The regulations provide 26 weeks of leave for this purpose. In addition to extending the 12 week period for this purpose, the regulations also extends coverage for this purpose to the servicemember’s next of kin, as opposed to the more narrow coverage provided under the FMLA for those eligible for leave to care for a relative’s serious health condition.

Qualifying Exigency Leave
The new regulations also allow for Exigency Leave for qualified family members of an individual serving in the National Guard or Reserves. This provision provides that such qualified employees can utilize their FMLA leave (up to 12 weeks unpaid) in the following exigencies that are related to the service member’s active duty or contingency operations:

– Short-notice deployment
– Military events and related activities
– Childcare and school activities
– Financial and legal arrangements
– Counseling
– Rest and recuperation
– Post-deployment activities
– Additional activities agreed to by the employer and employee

The Department of Labor has created forms for these military related leaves.

Other Changes and Clarifications
While the military leave issues have garnered the most attention, the new regulations touch on other areas. These include:

Break in Service
In order to qualify for FMLA leave, an employee must have worked for an employer for 12 months. However, these do not have to have been 12 consecutive months. Under the new regulations, if the employee has worked for the employer for 12 months over a seven year period, that employee is eligible for FMLA leave if all other requirements (including 1,250 hours worked in the 12 months prior to leave) are met. Different rules apply for servicemembers that essentially require an employee to count periods prior to a break in employment due to military service.

Applying Ragsdale: The Department of Labor changed the regulations to indicate that an employer is not liable under the FMLA unless the employee demonstrates actual, individual harm for an FMLA violation. This is to comport with the United States Supreme Court’s decision in Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002).

Light Duty Work: Light duty work does not count against an employee’s FMLA leave.

Release of Claims: Employees may voluntarily release FMLA claims with court or Department of Labor approval, however future FMLA claims can not be waived.

Serious Health Condition: The new regulations clarify issues related to what constitutes a serious health condition under the FMLA. The FMLA provided one definition as more than three consecutive days of incapacity plus two visits to a health care provider. Under the new regulations, this is clarified to mean that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit must take place within seven days of the first day of incapacity. This same seven day rule applies to another definition of aserious health condition which requires more that three consecutive days of incapacity plus a regimen of continuing treatment. The regulations also define that “periodic visits” to a health care provider for purposes of FMLA leave for chronic health conditions means two or more visits in a year.

Paid Leave: An employer must allow employees to take accrued paid leave in lieu of unpaid leave under the same rules that would apply to all other employees. This applies to vacation as well as “personal leave” or any other paid leave policies. An employer may waive any procedural requirements for the taking of paid leave if it is to be utilized for FMLA purposes.

Perfect Attendance Awards: Employers do not have to provide perfect attendance award when an individual only misses work due to FMLA leave, provided that all other leave is treated similarly.

Employer Notice Requirements: The new regulations place various notification requirements on how employers must advise employees of FMLA rights. These include a general notice through a poster and either an employee handbook or other notification upon hire, eligibility notices, rights and responsibilities notices, and designation notices. The notification period for employers has been extended from two business days to five.

Reporting Absences: Employees are required to follow usual procedures for reporting an absence occasioned by an unforeseeable need for FMLA, unless unusual circumstances exist.

Certification: The Department of Labor has created forms for certification of serious health conditions. If an employer feels that a medical certification does not provide enough information, the employer must specify in writing what is lacking and give the employee seven days to cure the issue. When an employer needs to seek clarification or gather information from a health care provider about an employee’s condition, only a health care provider, human resources professional, leave administrator or management official may make such contact. However, an employee’s direct supervisor can not request such information. When such information is requested, it can not exceed what is required by certification forms. The new regulations have updated model forms for employers to use for this purpose. Furthermore, if the health care provider is covered under HIPAA, the employer must obtain a HIPAA compliant authorization form from the employee before contacting the health care provider. If the employee refuses to provide

Recertification: When a medical condition lasts for more than a year, an employer may request recertification each year. For other ongoing conditions, recertification may be requested every six months (previously, this was every 30 days).

Fitness-For-Duty: Employers may require fitness for duty certifications that address the employee’s ability to perform the essential functions of their job, and may require certification when an employee returns from intermittent leave where reasonable job safety concerns exist.

The Department of Labor has provided various forms for dealing with various aspects of the FMLA, including those in the new regulations. These are available here.

What Does This Mean to Employers?

The FMLA has never been the easiest law for employers to administer. The new regulations certainly do not change that.

In light of the new forms of leave as well as the changes and clarifications to the prior regulations, employers need to review and revise their FMLA policies, as well as policies related to absenteeism, “call in” procedures, and how paid leave is utilized.

Employers should also review the forms they use for FMLA certification purposes, or, better yet, obtain and utilize the forms created by the Department of Labor.

The changes in the regulations provide employers with a very good reason to take care of what should be regular maintenance and review of existing policies.


The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.