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New FMLA regulations and military leave: What you need to know

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in Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

by Alfred B. Robinson, Jr., Esq., Ogletree Deakins

New FMLA regulations go into effect on Jan. 16. Employers must become familiar with these changes and adjust their policies accordingly. Here’s a summary of some of the most important changes to the FMLA.

Note: The U.S. Department of Labor (DOL) has provided a fact sheet on the new regulations. Find it at www.dol.gov/esa/whd/fmla/finalrule/factsheet.pdf.

Revisions to existing FMLA regs

1. Definition of “serious health condition.” The final regulations reorganize the various definitions of a serious health condition. While the DOL retains six definitions, it modified the tests of “incapacity and treatment” as follows:

  • For continuing treatment involving two or more doctor visits, those visits now must occur within 30 days of the start of the incapacity.
  • The first visit with a health care provider (whether followed by a successive visit within 30 days or a regimen of treatment such as antibiotics) must occur within seven days of the start of the incapacity.
  • The “chronic condition” definition of serious health condition now requires periodic doctor visits of at least twice a year for treatment.

2. Process of obtaining medical certification. If a certification is incomplete or insufficient, the employer must give the employee written notice of the additional information needed and allow the employee seven days to cure the deficiency. A manager or HR professional can contact an employee’s health care provider to clarify or authenticate a certification—but the employee’s immediate supervisor may not. A fitness-for-duty certification may address the specifics of any employee’s ability to perform the essential functions of the job.

3. Notice Requirements.
In its final regulations, the DOL consolidated into one section the notices an employer may be required to provide: (1) general notice; (2) eligibility notice (an employer now has five business days to provide this, instead of two); (3) rights and responsibilities notice; and (4) designation notice.

An employer may require an employee to comply with its usual notice and procedural requirements for requesting FMLA leave, unless there are unusual circumstances.

4. Miscellaneous

  • An employee can settle, waive or release FMLA claims based on past employer practices without DOL supervision or participation. However, an employee cannot waive or settle his or her FMLA prospective rights.
  • While FMLA leave is unpaid leave, the final regulations clarify that an employer may require compliance with the procedural requirements of a paid leave benefit when substituting paid leave of any type for unpaid FMLA leave.
  • Employees may be disqualified from perfect-attendance awards or other bonuses because they are absent due to FMLA leave if such awards are not paid to employees on leave for reasons unrelated to the FMLA.

Military Family Leave entitlements

The most significant aspects of the DOL’s FMLA regulations address active duty and military caregiver leave provisions.

1. Active duty leave.
The DOL’s final regulations identify specific circumstances that constitute a qualifying exigency for which an eligible employee is entitled to FMLA leave while that employee’s spouse, son, daughter or parent is on active duty or called to active duty status: 

  • Short-notice deployment
  • Military events and related activities
  • Child care and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation
  • Post-deployment activities

Additional activities may qualify.

2. Military caregiver leave.
Employees may take 26 weeks of leave to care for a covered service member with a serious injury or illness during a single 12-month period.

The DOL’s regulations state that the leave entitlement applies on a per-covered service member, per-injury basis, and the 12-month period begins with the first day an eligible employee takes military caregiver FMLA leave.

The final regulations define a number of terms, such as “covered service member” and “serious illness or injury.”

Just as with active duty FMLA leave, an employer may require certification from an employee seeking military caregiver FMLA leave. The regulations specify that a Department of Defense or Department of Veterans Affairs health care provider may complete the certification.


Alfred B. Robinson, Jr. is a shareholder in Ogletree Deakins’ Washington, D.C. office and former acting administrator of the DOL’s Wage and Hour Division (which enforces the FMLA). His practice includes representing clients before the EEOC, National Labor Relations Board, DOL, other administrative agencies and various federal and state courts.

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