Family and Medical Leave Act (FMLA) ? Final Rule

December 11, 2008

The first revision to FMLA regulations since the enactment of the 1993 law was issued by the Department of Labor's Wage and Hour Division in the Federal Register on November 17, 2008. The final rule will take effect in 60 days from this publication ? January 16, 2009. Following are some of the significant changes to the Act:

Military Provisions

The final regulations implement the expansion of FMLA for military families, which was passed by Congress and signed into law by President Bush in January 2008. Under the FMLA expansion, employers are required to offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military personnel. Employers must also provide up to 12 weeks of FMLA leave to immediate family members of Reservists and members of the National Guard who have "qualifying exigencies" associated with the Reservist or guard member on active duty.

The new rule defines "qualifying exigencies" as (1) short-notice deployment, (2) military events and related activities, (3) child care 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 the employee agree to the leave.

Revision To Comply With Supreme Court Decision

The revised regulations do not include portions of the old rule that the Supreme Court struck down in Ragsdale v. Wolverine Worldwide Inc. In the court's opinion, the old regulations improperly deemed some employees eligible for FMLA leave when employers failed to follow the rules for designating leave as FMLA. The ruling confirmed the statutory limit of only 12 weeks of FMLA leave in a 12-month period.

Serious Health Condition

While the rule retains the six individual definitions of a "serious health condition," the revisions provide some specific guidance. First, it clarifies that if an employee is taking leave involving more than three consecutive days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the incapacity. Second, regarding chronic serious health conditions, it defines "periodic visits to a health care provider" as at least two visits to a health care provider per year.

Employer Notice Requirements

Employers now have to notify employees of their eligibility to take FMLA leave within five business days (was two), absent extenuating circumstances. Also, employers now have five business days in which to notify employees of whether or not leave is designated as FMLA leave, absent extenuating circumstances.

Employee Notice Requirements

Employers may require employees to follow their usual and customary notice requirements for requesting leave, absent unusual circumstances, so long as the employer's usual reporting procedure is not more stringent than the FMLA allows.

Medical Certification

Employers (e.g. HR professionals, leave administrators, management officials) may now contact the employee's health care provider directly and without the employee's consent. However, the employee's direct supervisor is prohibited from making contact with the health care provider.

Light Duty

Under the final rule, time spent in "light duty" work does not count against an employee's FMLA entitlement, and the employee's right to job restoration is held in abeyance during the light duty period. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

Perfect Attendance Awards

The final rule changes how perfect attendance awards are treated to allow employers to deny a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA leave ? but only if the employer treats employees taking non-FMLA leave in the same way.

Staff Recommendations

We recommend that you contact SESCO to:

1) Revise your handbook policy for FMLA
2) Purchase updated FMLA forms
3) Purchase new federal 6-in-1 posters

If you have questions about FMLA, please contact Phil Richards, Director of Client Services at phil@sescomgt.com or 423-764-4127.