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The DOL revised the FMLA regulations in early 2009 to reflect both court decisions and changes Congress made in the National Defense Authorization Act of 2008. (Congress again changed the military leave rules in the 2010 NDAA.) Here are the most important changes:  

1. Military caregiver leave. The 2008 NDAA allows covered employees in military families to take up to 26 weeks of unpaid FMLA in each 12-month period to care for a family member with a service-related illness or injury. The 2010 NDAA expanded the definition of service-related illness or injury to include a condition related to military service completed in the last five years. Also, while the 2008 NDAA covered only activated reservists and National Guard members, the 2010 NDAA includes the regular armed services as well. 

2. New leave for families of National Guard and Reserve members. Families of National Guard and Reserve personnel on active duty are allowed to take up to 12 weeks of job-protected FMLA leave per year to manage their affairs.

The FMLA leave of the employee (a spouse, son, daughter or parent of the military member) must be related to certain qualifying circumstances related to the military service. The rules define a qualifying situation as one involving: (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 in which the employer and employee agree to the leave.

3. Revised definition of a “serious condition.”
The new regulations tinker with the definition of an FMLA-qualifying “serious health condition.” The law says a serious condition must involve more than three consecutive calendar days of incapacity plus “two visits to a health care provider.” One court (the 10th Circuit) threw a wrench into the works by ruling that those two doctor visits must occur within the more-than-three-day period of incapacity. The new rules clarify that those two visits must occur within 30 days of the period of incapacity.

4. Direct contact with doctor allowed. Good news: The new regulations allow employers to directly contact an employee’s health care provider to seek clarification about information on an employee’s FMLA certification form.

Note: An employee’s “direct supervisor” is prohibited from making such inquiries. The rules give this right only to a “health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official.” Also, employers can’t ask doctors for information beyond what is required by the certification form.

5. New employer notice obligations.
In addition to conspicuously posting a notice about your FMLA and complaint-filing procedures, you must provide the same notice in your employee handbooks (or distribute a copy of your FMLA policy upon hire).

Employers will now be given five business days—instead of two—to send out FMLA eligibility and designation notices to employees.

6. Less leeway for employees’ notice.
Previously, the law was interpreted to allow employees to give notice of their need for FMLA leave up to two business days after being out on FMLA leave, even if they could have given notice earlier.

But the new rules say that, in most cases, employees who take intermittent FMLA leave must follow the employer’s call-in procedures for reporting an absence, unless there are unusual circumstances.

 7. Settlement of past FMLA claims allowed. The rules clarify that employees can retroactively (typically as part of a severance or settlement agreement) volunteer to settle their FMLA claims with their employers without getting court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.

 8. Light duty doesn’t count as FMLA leave.
The rules make clear that the time employees spend performing “light-duty” work does not count toward their 12 weeks of FMLA entitlement. (This was included because at least two courts ruled that employees used up their 12 weeks of FMLA leave while on light-duty assignments after FMLA leave.)

9. Perfect-attendance awards can be denied. Employers can deny perfect-attendance awards to employees who take FMLA leave (and thus are absent) as long as they treat employees taking non-FMLA leave the same way.


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