Summary of new FMLA Regulations: 10 Key Changes

On Monday, November 17, 2008, the Department of Labor (DOL) published its final rule to implement the first-ever amendments to the Family and Medical Leave Act (FMLA). The new regulations update and clarify certain key issues under the FMLA, in addition to providing guidance on the law’s recent coverage changes for military family leave.

These changes become effective January 16, 2009. A full copy of the new regulations is available for download from the DOL.

Today begins a three-part series on these new regulations, beginning with the top 10 substantive changes to the old FMLA scheme. Tomorrow, I’ll take a look at the military leave regulations, and next Monday I’ll provide my thoughts on the pros and cons of the new regulations.

The regulations change the FMLA in the following key areas:

Serious Health Condition:

1. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider,” which now must take place within seven days of the first day of incapacity.

2. Another definition of serious health condition involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The new regulations clarify that the first visit to the health care provider must take place within seven days of the first day of incapacity.

3. The new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Light Duty: 

1. Time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement.

2. An employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).

Substitution of Paid Leave: FMLA leave is and remains unpaid, although employer can require that employees use any and all paid time off (sick days, vacation, personal days, etc.) concurrently with FMLA leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FMLA leave must follow the same rules of the employer’s policy that apply to other employees for the use of such leave.

Perfect Attendance Awards: Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave, as long as it treats employees taking non-FMLA leave identically.

Employer Notice Obligations:

1. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook or otherwise upon hire); an eligibility notice and a rights and responsibilities notice (given when leave is requested); and a designation notice (given when leave is designated as FMLA-leave).

2. The new regulations extends the time for employers to provide these various FMLA notices from two business days to five business days.

All of these forms are available from the DOL in the new regulations.

Employee Notice: The new regulations provide that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

Medical Certification Process

1. During the medical certification process, the employer will be permitted to speak directly to the employee’s health care provider, so long as the employer’s contact person is a health care provider, human resource professional, a leave administrator, or a management official. It can never be the employee’s direct supervisor.

2. Employers may not ask health care providers for additional information beyond that required by the certification form.

3. The DOL will provide separate medical certification forms for the employee and covered family members. The forms will also allow, but not require, health care providers to provide a diagnosis of the patient’s health condition as part of the certification.

4. If an employer deems a medical certification to be incomplete or insufficient, the employer must specify, in writing, what information is lacking, and give the employee at least seven calendar days to cure the deficiency.

5. Employers may request a new medical certification each leave year for medical conditions that last longer than one year.

6. In all cases, employers are now permitted to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness-For-Duty Certifications:

1. An employer may require that the certification specifically address the employee’s ability to perform the essential functions of the job.

2. Where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work from intermittent leave.

The Ragsdale Decision/Penalties: Ragsdale v. Wolverine World Wide  ruled that an employer’s failure to properly designate leave as FMLA leave cannot result in the grant of additional leave to an employee without a specific showing of harm to the employee from the missed designation. The new regulations clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable for the additional FMLA time.

Waiver of Rights: Taylor v. Progress Energy held that no FMLA waiver, whether retrospective or prospective, can be valid unless first approved by a court or the DOL.The new regulations clarify that employees may voluntarily settle or release their FMLA claims based on past conduct without court or agency approval. Prospective waivers of FMLA rights continue to be prohibited absent prior approval.