The new FMLA: Top 10 changes you must comply with

On Nov. 17, the U.S. Department of Labor published its final update of new rules on complying with the FMLA, paving the way for the first major overhaul of the FMLA regulations since the law was enacted 15 years ago.

The new FMLA regulations, which will take effect Jan. 16, 2009, codify military family leave rights enacted earlier this year and should help employers and workers alike better understand their FMLA rights and responsibilities.

The new rules define how family members of military men and women may take leave when a loved one is killed or injured in the line of duty and spells out situations that qualify for FMLA leave when a member of the military is called to active duty.

The final rules also call for increased notice obligations for employers so that employees will better understand their FMLA rights, while revising the employee notice rules to minimize workplace disruptions due to unscheduled FMLA absences. Technical changes reflect FMLA decisions by the U.S. Supreme Court and lower courts.

“The new rules drastically change the way much of the FMLA works,” said Matthew Effland, an employment law attorney and FMLA expert with the law firm Ogletree Deakins in Indianapolis. “Some changes favor employers by offering greater flexibility in administering leave. But it’s imperative that HR professionals move quickly to update their policies so they don’t inadvertently violate the law."

Effland will explain the compliance implications of the new FMLA rules during an HR Specialist audioconference—“FMLA in 2009: New Pitfalls … and New Powers”—on Jan. 8, just a week before the new FMLA rules take effect.

The new rules make clear that HR professionals will have to master 10 key changes to the FMLA:

1. Military caregiver leave: Implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred while on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

2. Leave for "qualifying exigencies" for families of National Guard and Reserve members: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies." The rules define “qualifying exigencies” as situations involving: 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 where the employer and employee agree to the leave.

3. New employer notice obligations: The final rules consolidate all employer notice requirements into a "one-stop" section of the regulations to clear up some conflicting provisions and time periods. Further, they clarify and strengthen employer notice requirements so employers can better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

4. New employee notice rights: The final rules modify the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rules, the employee must follow the employer’s normal and customary call-in procedures, unless there are unusual circumstances.

5. New medical certification process: The final rules recognize the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of HIPAA’s medical privacy rule to communications between employers and employees’ health care providers. Responding to concerns about medical privacy, the rules add a requirement that limits who may contact the health care provider and bans an employee’s direct supervisor from making the contact.

6. Clarification of waivers of rights: The DOL has finalized its longstanding position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, prospective waivers of FMLA rights will continue to be prohibited.

7. Definition of “serious health condition”: While the rules retain individual definitions of "serious health condition," they add guidance on some regulatory matters. If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. The rules define "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.

8. Clarification of light-duty FMLA rules: At least two courts have held that an employee uses up his or her 12-week FMLA leave while on a "light-duty" assignment. Under the final rules, time spent in light-duty work does not count against an employee’s FMLA leave 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.

9. Application of FMLA leave to awarding perfect attendance awards: The final rules change 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 an identical way.

10. Clarification of “leave stacking” rules: The updated rule contains technical changes to be consistent with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide Inc. The court ruled that the regulation’s so-called "categorical" penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave) was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law’s remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

For further information about the FMLA and the proposed regulations, visit the Wage and Hour Division’s web site at