Changes to Family and Medical Leave Act

The Department of Labor (“DOL”) has published new regulations governing the Family and Medical Leave Act (FMLA), which are effective January 16, 2009. These new regulations give the families of military service members new rights to unpaid leave. This is not intended as legal advice. We urge you to contact an attorney if you need legal advice or more information regarding these changes. Below is a summary of the most significant changes:

• The new regulations create two types of military leave, “qualifying exigency” leave and “military caregiver” leave. The first type applies if the employee’s spouse, child or parent is called to active duty in the Military Reserves or National Guard. It does not apply to employees whose family member is in the regular Armed Services. This leave is designed to help employees prepare for the departure and return of a family member from active service.

• The second type of military leave allows the employee to take up to 26 weeks of leave to care for a family member who is a military service member with a serious illness or injury incurred in the line of duty. This new form of leave applies only to family members of current Armed Forces, National Guard or Military Reserves. No more than 26 work weeks of leave may be taken within any single 12-month period, for this or for any other FMLA-qualifying reason.

• The new regulations also change the law regarding “perfect attendance” awards. Under the prior rule, an employee could use up to 12 weeks of FMLA leave without losing eligibility for benefits under his or her employer’s perfect attendance policy. The new rule allows employers to count absences covered under the FMLA against the employee’s attendance.

• “Light duty” assignments may no longer be counted against an employees’ FMLA leave entitlement.

• An employer may now require an employee before returning to work from FMLA to obtain a certification from the employee’s healthcare provider stating that the employee is able to perform essential job functions. The regulation further limits who may contact the employee’s healthcare provider to obtain this information. The contacting party must be a different healthcare provider, human resource personnel, leave administrators or management officials. However, under no circumstances may the employee’s direct supervisor be the one to make contact.

• The new FMLA regulations also further define to an employee with a chronic condition what is meant by “periodic visits” to a healthcare provider. A “periodic visit” is at least two visits to a healthcare provider per year.

What should the employer do now?

Under the new regulations employers are required to provide:

1. Notice to all employees of their FMLA rights/responsibilities in the form of a poster placed in a general area visible to all. And, provide written notification via an employee handbook or other written means.

2. Notice of Eligibility and Rights and Responsibilities (form WH-381 below)

3. A rights and responsibility notice detailing the employee’s rights and obligations under the employer’s FMLA policy 4. A Designation Notice (form WH-382 below) given within five days

Below are the new forms referred to above:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)

WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

WH-382 Designation Notice (PDF)

WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

WH-385 Certification for Serious Injury or Illness of Covered Service member -- for Military Family Leave (PDF)

These new regulations are effective January 16, 2009. This is a good opportunity to update employee handbooks and policy manuals.

If you have questions, need assistance filing the forms, or revising your employee policies, please contact our Labor Department at 937.223.1130.