Changes to the Family Medical Leave Act – January 2009

Some important changes took effect in January, 2009 to the Family and Medical Leave Act (FMLA) by new U.S. Department of Labor rules. The rules clarify what is required for the new military FMLA leave, and try to end areas of conflict or confusion.

You may remember that the FMLA, which is now 15 years old, applies to employers who have 50 or more employees, and to all government employers. The FMLA has always allowed employees up to 12 weeks of unpaid leave in a 12-month period for medical needs like (1) the birth or adoption of a child, (2) caring for a spouse, child, or parent with a serious health condition, or (3) the employee’s own serious disabling health condition. The leave may sometimes be taken intermittently, or by working a reduced schedule.

The new Military Caregiver Leave (also known as Covered Servicemember Leave) extends 12 weeks of unpaid leave to 26 weeks for certain military-related purposes. Leave can be taken by a next of kin to care for a servicemember who suffered a serious illness or injury in the line of duty on active duty. Another new military-related leave is the Qualifying Exigency Leave. This is 12 weeks of unpaid leave available to families of National Guard and Reserves members while on active duty, or when preparing to deploy on short notice. This leave is for several categories of needs, such as childcare and school activities, financial and legal arrangements, counseling, rest, and military-related events and activities.

The new rules clarify employer and employee rights and responsibilities under the Act. The new rules try to fix some “sore spots” under the old law that led to conflicts. Some of these highlights are:
One of the worst “sore spots” for employers was when an employee waited up to 2 business days’ absence before notifying an employer that he/she needed FMLA leave, even when notice could have been given sooner. The old law allowed this. Lack of prompt notice for unscheduled absences caused problems for employers. Under the new rule, employees must follow the employer’s customary call-in procedures for reporting an absence, except in case of emergency.

An employee who is working “light duty” but is not missing any time is not using his FMLA leave time. An employer is liable when an employee suffers individualized harm as a result of the employer failing to follow notification rules, but employers are not assessed categorical penalties for not following notification rules. Another source of problems for employers and employees was being unsure what medical certification could be required, how, and when. To protect employee privacy, new rules clarify that an employee’s direct supervisor shall not be the person from the employer who contacts the doctor for information; it must be another manager, an HR official, or leave administrator. If the employer believes a form is incomplete or insufficient, the employer must notify the employee and give him/her 7 calendar days to remedy the problem. A new certification can be required every 6 months for ongoing health conditions.

The old law seemed to require that employees on FMLA leave still be eligible for “perfect attendance” awards even though they were out on leave. Co-workers and employers felt this was unfair to employees who were not out on leave. The new rule is that an employer can deny perfect attendance awards to an employee who is out on FMLA leave as long as the employer treats employees taking non-FMLA leave in an identical way.
There are new rules for how and when an employer must notify employees of their FMLA rights. The new law puts all the notice requirements in one place, making them easier to follow.

Employers will find the notification poster and forms on the U.S. Department of Labor website, at or by calling 1-866-4USWAGE. Both employers and employees will find these sources helpful in providing more information about the new rules. An employment law attorney can also provide you with guidance.

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