February 23, 2009 / Issue No. 1-09
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AGC's 90th Annual Convention/Constructor Expo is Just Around the Corner - Are You Ready?
Goverment Contracting
Pres. Obama Lifts Ban on Government-Mandated Project Labor Agreements
Pres. Obama Issues First Labor Executive Orders
DOL Reduces Information Required on Davis-Bacon Certified Payroll Records
E-Verify Mandate for Federal Contractors Delayed Again
Employers Must Continue Using Old Form I-9 for Now
Collective Bargaining
Newly Negotiated Union Wage and Fringe Benefits Up 4.6%
ADA Amendments Now in Effect
New Act Amends Federal Regulations and Increases Possibility of Pay Discrimination Claims
Other HR
Revised FMLA Regulations Now in Effect
Cutting Costs to Avoid Lay-offs
Employer Adjustments Required by Economic Stimulus Package

  Revised FMLA Regulations Now in Effect
Revised regulations under Family and Medical Leave Act (FMLA) took effect on January 16, 2009, pursuant to a final rule published by the U.S Department of Labor (DOL) on November 17, 2008.

The final rule is generally consistent with the proposed rule issued in February 2008, which contained modifications to many provisions of the current regulations, including required notices, the definition of "serious health condition," certification, re-certification, bonuses, voluntary settlement of claims, and other matters.  In addition, the final rule provides, for the first time, guidance on how to implement the FMLA’s family military leave provisions.  

FMLA Military Leave Provisions

  • Leave to Care for Injured Service Members:  This new FMLA provision, passed by Congress in January 2008, allows eligible employees who are the spouses, children, parents, or next of kin of a service member to take one leave of up to 26 weeks under the FMLA to care for a service member who incurred an injury during military service.   The regulations provide guidance on when this leave is available and who may take leave.  The regulations indicate that DOL has interpreted the statutory provisions more broadly than many employers may have anticipated. 
    • First, the term "next of kin," is broadly defined to include grandparents, aunts, uncles, first cousins, and any relative so designated by the service member – not just spouses, parents, and children.
    • Second, although the military caregiver leave can be taken only once per injury, more than one family member may qualify for it.
    • In addition, although the statute refers to a “one time” leave of up to 26 weeks, the final rule provides that military caregivers may take leave again if the service member incurs other injuries. The leave, however, is available only while the service member remains in the military.
  • Leave for Qualifying Exigencies: This January FMLA amendment allows families of certain military personnel to take FMLA leave for “qualifying exigencies.”   The new FMLA rules define who is eligible for this type of leave and the very specific circumstances under which it is available.

    • Significantly, this leave is only available to the covered family member of National Guard and Reserve personnel on active duty.  This leave is NOT available to family members of active duty members of the Armed Forces.
    • The rules define the “specific” and “exclusive” list of “qualifying exigencies” as: (1) short-notice deployment (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.

Additional Changes in the Final FMLA Regulations

While the final regulations are consistent with the proposed regulations, the final rule clarifies certain changes and contains some additional modifications: 

  • Notice of FMLA Absence:   In a change that will provide some relief to employers, the employees must follow their employer's call-in policies when they miss work for a FMLA-qualifying reason "absent unusual circumstances." Currently, employees have up to two days after a business absence to notify the company about their need for leave.  The rules also make clear that FMLA-protected leave may be delayed or denied when an employee does not comply with the employer’s usual notice and procedural requirements and no unusual circumstances justify the failure to comply.
  • Chronic Conditions:  To establish a "chronic condition" for FMLA leave purposes, employees for the first time will have to certify that they visited a doctor at least twice a year for the condition.
  • Authentication and Clarification of Medical Certification:   In a provision supported by employers, the proposed regulations made clarification and authentication of an employee’s medical certifications easier by allowing employers to contact healthcare providers directly for purposes of authenticating or clarifying a medical certification, eliminating the requirement that employers use an intermediary at this stage. However, in response to numerous comments DOL backed off that provision somewhat.  The final regulations continue to allow employer contact with the healthcare provider, but now prohibit direct supervisors from obtaining an employee's medical information when a FMLA certification is needed to protect the employee's privacy.
  • Substitution of Paid Leave:  The regulations also provide more detailed guidance on the substitution of paid leave for FMLA leave. Significantly, employers must provide additional notice of the circumstances relating to the use of paid leave.  The regulations do make clear that employer’s may require substitution of paid leave in the FMLA context to comply with employer leave policies.   By way of example, the regulations state:  “if an employer’s paid personal leave policy requires two days’ notice for the use of personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days’ notice.”  In addition, “where an employer’s paid leave policy requires the use of such leave in an increment of time larger than the amount of FMLA leave requested by an employee, if the employee wishes to substitute paid leave for unpaid FMLA leave, the employee must take the larger increment of leave required under the paid leave policy unless the employer chooses to waive that requirement. The employer is not required to permit the employee to substitute paid leave for the smaller increment of unpaid FMLA leave.”
  • Perfect Attendance Awards: The final regulations allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because of the employee’s FMLA leave. However, the employer must treat employees taking non-FMLA leave in an identical way to deny the award because of a FMLA leave.
  • Return to Work Certification:   The final regulations allow the employer to require that an employee returning from an FMLA leave obtain a certification from the healthcare provider that the employee is able to resume work. However, the final regulations now provide that if the employer is going to require a fitness-for-duty certification prior to returning the employee to work, the employer must provide notice of this requirement no later than in the FMLA Designation Notice and indicate in the Designation Notice whether certification must address the employee’s ability to perform the essential functions of the employee’s job.  In addition, the final regulations provide that employers may require fitness-for-duty tests for employees returning from intermittent FMLA leave if doing the job raises a significant risk of harm to themselves or others.
  • FMLA Forms:   In addition to the modified Medical Certification Form, the final regulations also contain a modified FMLA Designation Form to notify employees of time designated as FMLA.  The final regulations contain a new requirement that  the employer to notify the employee if the information provided in the designation notice changes (e.g., if the employee exhausts the FMLA leave entitlement).

What Should Employers Do Now

The substantive and procedural changes to the regulations make it imperative that employers update FMLA policies and procedures as well as other employment practices to comply with the law and ensure full protection for the employer.    

An FMLA “to do” list should reflect the fact that the revised regulations strongly emphasize increased communications between employers and employees about FMLA rights and obligations.  In addition, the “to do” list should also take into account the regulations’ revised provisions that permit employers to maintain consistency between their non-FMLA policies and procedures and FMLA leave practices.  Employers are advised to:

  • Revise FMLA policies and procedures.   The revised FMLA regulations make it imperative that employers update FMLA policies to incorporate changes from the revised regulations and to add the new Military Family Leave Provisions.
  • Develop and implement new FMLA forms.  Along with the revised regulations, DOL has issued a new FMLA notice poster and no less than six new FMLA “prototype” forms, including new medical-certification forms for both employee and family-member serious health conditions.  Employers must post the notice and incorporate these forms in their FMLA procedures by either using DOL model forms or developing their own.
  • Review and, if necessary, revise other documents related to FMLA compliance.  The revised FMLA regulations allow employers to require employees to follow “usual and customary” leave and absence policies when taking FMLA leave, as long as those policies are applied consistently.  That means that employers must review non-FMLA leave and attendance policies to ensure consistency between those policies and the FMLA policy.   Employers should also review or develop job descriptions for essential job functions for use with medical certification forms and fitness-for-duty certifications.
  • Train supervisors, managers, and HR professionals.  After 15 years, employers and employees have grown familiar with existing FMLA requirements, policies, and procedures. Changing long-standing routines is never easy. The revised regulations, however, will require that both employers and employees quickly learn and follow new procedures and revised employer policies.  Training for frontline supervisors and managers, who often have the initial responsibility for identifying FMLA issues, is critical for ensuring compliance with the revised regulations.

Editor’s noteThis article was written by guest author Miriam L. Rosen, Shareholder, Butzel Long, and reprinted with permission.  Ms. Rosen can be reached by e-mail at  rosen@butzel.com or by telephone at (248) 258-4498. [ return to top ]