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New FMLA Regulations Released

November 17, 2008

On November 17, the Department of Labor Wage-Hour Division released revised regulations to the Family and Medial Leave Act (FMLA). Although the FMLA regulation changes have been more than two years in the making, employers only have 60 days to adapt; the rules are effective January 2009.

The rules clarify the rights and responsibilities of both employers and employees, addressing issues such as the numerous definitions of "serious health conditions," the requirements on medical certification forms, the impact of "light duty" assignments on FMLA leave, the waiver of FMLA rights, and the use of accrued paid leave.

The final rules also implement new FMLA military leave entitlements enacted in the 2008 National Defense Authorization Act, signed in January 2008. Military caregiver leave provides family members of injured service members with up to 26 weeks of leave in a single 12-month period. Qualifying exigency leave allows military family members to use the normal 12 weeks of FMLA leave to manage the affairs of the service member while they are on active duty or called to active duty. The rules also expand the definition of "next of kin," to include grandparents, aunts, uncles, first cousins and any relative so designated by the service member (not just spouses, parents and children)--all are eligible to take this leave.

Other key changes include the following:

  • Employees will have to follow their employer’s call-in policies when they are planning to miss work "absent unusual circumstances."
  • For a "chronic condition" to qualify for FMLA leave, employees (for the first time) will have to certify that they visited a doctor at least twice in the last year for the condition.
  • Employers may require fitness-for-duty tests for employees returning from intermittent FMLA leave if doing the job raises a significant risk of harm to themselves or others.
  • When employers place injured or ill workers on "light duty," the time on "light duty' doesn’t count against the employee’s FMLA leave entitlement.
  • The type and frequency of treatments that employees must receive under the "chronic" and "continuing treatment" definitions for a serious health condition are clarified.

U.S. Department of Labor Website

NACUBO Contact: Tadu Yimam, policy analyst, adovocacy & issuses analysis