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ALERT - Department Of Labor Publishes Final Revised FMLA Regulations Effective January 16, 2009

Volume 7, Issue 11
January 31, 2009

The Department of Labor has published its final revised regulations for the Family and Medical Leave Act. The new regulations, which become effective on January 16, 2009, address the two new forms of FMLA leave for military families adopted in January 2008 and make numerous changes to the existing FMLA regulations. As discussed in KZA's Employer Report, Volume 7, Issue 1, the FMLA was amended in January 2008 for military families by permitting two additional types of FMLA leave for eligible employees: (1) medical leave to care for a family member who was injured while serving in the military and (2) leave for "qualifying exigencies" associated with a family member's active duty or call to active duty. While the injured service member leave became effective in January 2008, the active duty leave for qualifying exigencies did not become effective until the DOL issued the present regulations. As a result, effective January 16, 2009, employers must allow leave for employees experiencing one or more of the following eight (8) qualifying exigencies caused by the active duty or call to active duty of the employee's spouse, son, daughter, or parent:

  • Short-notice deployment: leave to address any issue that arises from an impending call or order to active duty in support of a contingency operation 7 days or less prior to the date of deployment;
  • Military events and related activities: leave to attend any military ceremony, program, or event related to the active duty or call to active duty status or to attend certain family support or assistance programs and informational briefings;
  • Childcare and school activities: leave to arrange or provide for childcare or school-related activities;
  • Financial and legal arrangements: leave to make or update various financial or legal arrangements;
  • Counseling: leave to attend counseling (by someone other than a health care provider) when necessary as a result of the active duty or call to active duty status;
  • Rest and recuperation: leave to spend time with a covered military member who is on short-term, temporary, rest-and-recuperation leave during the period of deployment (up to 5 days);
  • Post-deployment activities: leave to attend arrival ceremonies (including funeral or memorial services), reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following active duty status; and
  • Additional activities: leave to address other events arising from military duty agreed upon between employer and employee.

Employers may require the employee to complete an appropriate certification form such as the one developed by the DOL. Additionally, employers may require a copy of the covered military member's active duty orders or other military documentation to support the qualifying exigency.

In addition to implementing and interpreting the military leave provisions, the new regulations address a number of interpretive issues that have arisen since the FMLA took effect, including the definitions of "serious health conditions," employee and employer notice obligations, the handling of medical certifications, the circumstances under which an employer may require a fitness for duty test for employees returning from intermittent leave, and the substitution of paid leave for FMLA leave.

One significant and beneficial change is in the certification process -- employers may now directly contact an employee's health care provider to authenticate or to obtain clarification of information required by a certification form. This contact cannot be made by a "direct supervisor" and instead must be made by a "health care provider, a human resources professional, a leave administrator (including third-party administrators), or a management official." KZA is in the process of preparing a detailed report of the changes to the FMLA and a revised FMLA policy which will be available to our clients. As soon as these materials are complete, we will notify you.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.