November 17, 2008

On November 17, 2008, the Department of Labor published new final FMLA regulations.  The new “final rule” adds new rules, and modifies and clarifies existing rules. It is intended to improve communication between employees, employers, and health care providers, and to clarify FMLA rights and responsibilities. 

EFFECTIVE DATE:    The new final rule takes effect January 16, 2009.


1.  Military Family Leave: Two new leave entitlements (and certification forms):

            a) Military Caregiver Leave (also known as Covered Servicemember Leave): Eligible employees who are family members (including "next of kin") of covered servicemembers may take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty.

            b) Qualifying Exigency Leave: The normal 12 workweeks of FMLA leave will be 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. “Qualifying exigency” includes: (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 the other categories, but agreed to by the employer and employee.

2.  Penalty Provisions:  Categorical penalty provisions for an employer's failure to properly designate FMLA leave or comply with other notice provisions are removed.  However, where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable.

3.  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 while the employee performs light duty.

4.  Waiver of Rights: Employees may voluntarily settle or release their FMLA claims without court or DOL approval.  Prospective waivers remain prohibited.

5.  Serious Health Condition: Three of the six definitions of serious health condition are clarified.

6.  Substitution (concurrent use) of Paid Leave: All forms of paid leave will be treated the same, regardless of the type of leave substituted (including generic “paid time off”).

7.  Perfect Attendance Awards: An employer can deny a “perfect attendance” award to an employee who does not have perfect attendance because of FMLA leave as long as it treats employees taking non-FMLA leave identically.

8.  Employer Notice Obligations: Employer notice requirements are expanded.  Employers must provide employees with a general FMLA notice (posting; employee handbook; if no handbook, then upon hire); an eligibility notice; a rights and responsibilities notice; and a designation notice. The time to provide various notices is extended to five business days.

9.  Employee Notice:
Employees needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

10.  Medical Certification Process (Content and Clarification): 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 cure the deficiency. After an employer has given the employee the opportunity to cure any deficiencies, the employer can contact the health care provider, but only with a HIPAA waiver signed by the employee, for clarification or authentication of the certification.   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 may it be the employee’s direct supervisor. Employers may not ask health care providers for additional information beyond that required by the certification form.

11.  Medical Certification Process (Timing): ANNUAL CERTIFICATION Employers may request a new medical certification each leave year for medical conditions that last longer than one year. RECERTIFICATION:  In all cases, an employer may request recertification of an ongoing condition every six months in conjunction with an absence.  In some cases an employer can request recertification more frequently.

12.  Fitness-For-Duty Certifications: Employers may enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. An employer may require that the certification address the employee’s ability to perform the essential functions of the 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.

13.  Forms:  The final rule provides the following forms:

a) Certification of Health Care Provider – employee's serious health condition

b) Certification of Health Care Provider – family member's serious health condition

c) Notice to Employees of Rights Under FMLA

d) Notice of Eligibility and Rights & Responsibilities

e) Designation Notice to Employee of FMLA leave

f) Certification of Qualifying Exigency for Military Family Leave

g) Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave


1.  Please note that this is not a complete list of all the changes resulting from the new final rule.
2.  Employers must post the DOL's new FMLA notice.
3.  Employers should review their FMLA policies, practices, and forms for compliance with the new final rule. 

Please feel free to contact an attorney in the Ahlers & Cooney Employment Practice Group for assistance with these issues or any other matter.


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Nadel, Steven


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