Revised Family and Medical Leave Act Rules Take Effect January 16, 2009

The final rule published by the Department of Labor on November 17, 2008 will take effect on January 16, 2008.

The rule creates two new leave entitlements for military families, including:

(1) Military Caregiver Leave - which will allow eligible family members of covered service members to take up to 26 work weeks of leave in a 12 month period to care for a covered service member with a serious injury or illness incurred in the line of duty. In addition to extending the normal leave from 12 to 26 work weeks, this new provision broadens the definition of family members who are permitted to take leave to include "next of kin".

(2) Qualifying Exigency Leave - which will allow family members of the National Guard or Reserves to take time off to manage their affairs when the family member is called to active duty, including time off for: short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and additional activities agreed to by employer and employee.

In addition to these new categories of leave for military families, the Final Rule clarifies many provisions of the regulations and incorporates recent court rulings. A few of the changes are as follows:

(1) Light duty - an employee who voluntarily takes a light duty position while eligible for FMLA leave retains the right to restoration for the full 12 month FMLA leave year.

(2) Waiver of rights - FMLA rights may be waived retrospectively (e.g., to settle a lawsuit), but not prospectively.

(3) Substitution of paid time off - if an employee wants to use other forms of paid time off during a family medical leave (e.g., vacation or sick time) the employer may impose restrictions that are applicable to all employees (e.g., vacation may only be taken during certain time periods).

(4) Perfect attendance awards - Employers can deny "perfect attendance" awards to employees who are on FMLA so long as employees on other types of leave are treated the same.

(5) Employee notice - Absent unusual circumstances, employees must follow the employer's usual and customary call-in procedures to report FMLA absences.

(6) Medical Certification/Contact with health care providers - only certain employer representatives may contact a health care provider regarding an employee's FMLA request. The employee's direct supervisor may not make such contact.

(7) Fitness for Duty - Employers may require fitness for duty examinations even when employees are just on intermittent leave if there are reasonable job safety concerns. Also the the employer may require that the fitness for duty certification specifically address the essential functions of the employer's job.

(8) Tracking leave in increments - FMLA leave must be tracked in increments no greater than the shortest period of time the employer uses for other types of leave. For example, an employer's policy may say that sick leave can only be taken in increments of one hour and could also require FMLA to be taken in one hour increments.

For more information on the new regulations, as well as revised forms and notice poster, go to the Department of Labor's FMLA Final Rule compliance page here.