Attention FMLA Employers - New Rules Going Into Effect

The Family and Medical Leave Act of 1993 (FMLA) has been revised based on new regulations that go into effect on January 16, 2009. These changes are a result of several factors, including: the passage of the military leave provisions in the Nation Defense Authorization Act; U.S. Supreme Court and lower court decisions; and public comments made to the U.S. Department of Labor (DOL).

We recommend that employers become very familiar with the eligibility requirements for FMLA. The law places the responsibility on the employer to determine if an employee’s leave meets the criteria for FMLA.

The notice and response timeframes for employers are very short and prompt attention is necessary to prevent violations of the statute. The following is intended to highlight and alert employers to the significant changes to the statute.

Military Caregiver Leave (Covered Service Member Leave) – Eligible employees who are family members of covered service members will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty.

Qualifying Exigency Leave – The normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. A qualifying exigency is referred to in broad categories for which employees can use FMLA leave: 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 not encompassed in other categories, but agreed to by the employer and employee.

Penalty for failure to appropriately designate FMLA leave – The new rule removes the categorical penalty for an employer’s failure to appropriately designate FMLA leave. The rule clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable.

Light Duty – “light duty” work does not count against an employee’s FMLA leave entitlement. The 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). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

Waiver of Rights – An employee may voluntarily settle or release their FMLA claims; however, prospective waiver of FMLA rights continues to be prohibited.

Serious Health Condition – The new rule gives regulatory guidance application of the categories. Where one definition involves more than three consecutive, full calendar days of incapacity plus two visits to a health care provider, 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. The first visit to a health care provider under a regimen of continuing treatment must also take place within seven days of the first day of incapacity. “Periodic visits” for chronic serious health conditions are at least two visits to a health care provider per year.

Substitution of Paid Leave – Paid leave may be substituted for FMLA unpaid leave. The revision states that all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee electing to use any type of paid leave concurrently with FMLA must follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave.

Perfect Attendance Awards - Employers are allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave so long as the employer treats employees taking non-FMLA leave in an identical way.

Employer Notice Obligations – Employers are required to provide employees with a general notice about FMLA, an eligibility notice, rights and responsibilities notice, and a designation notice. The time for providing various notices is extended from two days to five business days. The DOL has prepared several optional forms for employers to use which satisfy the notice requirements. Posters and forms can be found under “resources” at the DOL website at

Employee Notice – 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 – The employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator or a management official, but in no case the employee’s direct supervisor. Employers may not ask for additional information beyond that required by the certification form. 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 seven calendar days to correct the deficiency. Again, the DOL has optional forms that apply to certification requests for employee leave, family member leave and military leave. These forms are at the DOL website.

Fitness for Duty Certifications – An employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave. The employer is cautioned that when an employee is covered by both FMLA and the Americans with Disabilities Act, reasonable accommodations may be required before the employee is returned to the same job.

This publication is for general information only. The information contained is not intended as formal legal advice. If you have any questions or need assistance, please call your attorney at Curtis & Curtis, P.C.

Curtis & Curtis, P.C. is a full service law firm located in Jackson, Michigan providing superior legal services and advice to individuals, families and businesses throughout mid-Michigan since 1901.

Categories: Employee Relations