February 2008Newsletter

Changes to Family and Medical Leave Act Require Analysis and Policy Change

Employment Law Express

On February 11th, the United States Department of Labor (DOL) issued a proposal of new rulemaking, releasing new proposed regulations for the Family and Medical Leave Act (FMLA).

Three kinds of modifications are found in the proposed regulations

  1. Clarifications
  2. Responses to court decisions
  3. New rules

The new regulations are proposed and not final. The DOL seeks public comment by April 11, 2008.

To access the proposed regulations and to provide comment go to In the box under the “Comment or Submission” tab, type: FMLA and click on “go”. At the next screen, click on the “Proposed Rules” link on the left side of the page.

The new regulations are entirely reorganized and restated. Here is a description of some of the more notable proposed changes:

Coverage under the FMLA

  • Employers may ignore service by an employee prior to a five-year break in service for purposes of calculating whether the employee has been employed by the employer for at least 12 months.
  • An employee may become eligible for FMLA leave after the employee has already commenced a medical leave of absence.
  • A Cold or the Flu May Be a Serious Health Condition
  • Both mothers and fathers are recognized to be entitled to FMLA leave to attend routine appointments during pregnancy for prenatal care.
  • An absence for a chronic condition will be FMLA-protected even if the employee or family member did not see a doctor.
  • Physician assistants now qualify as health care providers even where acting without supervision by a doctor or other health care provider.

Employee Leave Entitlements under the FMLA

  • Holidays only count against FMLA leave if the employee takes a full week of FMLA leave in which the holiday occurs.
  • Employees are required to “make a reasonable effort” not to unduly disrupt the employer’s operations.
  • An employee working a light duty position due to incapacity to work his or her regular position is not deemed to use FMLA leave.
  • Under some circumstances, an employer may deny an attendance bonus to someone who was absent due to FMLA leave.
  • FMLA releases may be voluntarily executed without court or DOL supervision or approval.

Employee and Employer Rights and Obligations Under the FMLA

  • Many new notice requirements are now described for employers:
    • General Notice (poster)
    • Eligibility Notice
    • Designation Notice, and
    • Notice of Consequences if the employee doest not provide notice of the need for leave.
  • Employers may retroactively designate an absence as FMLA leave provided the employee is not harmed.
  • Employee notice obligations are refined.
    • Employees must explain absence so as to notify employers of FMLA-qualifying reason.
    • Calling in sick is not enough.
    • Employers may make, and employees must respond to, reasonable inquiries
    • Employers may enforce policies regarding process for reporting absences and requesting leave.
  • Medical Certifications
    • Employers must request medical certifications within 5 days of determining the employee’s need for FMLA leave.
    • Employers may demand cure of incomplete or insufficient certifications and may deny leave if not cured within 7 days.
    • The DOL has created a new medical certification form that is of greater value to employers.
    • Employers may require additional information from employees so as to comply with the ADA.
    • If an employer desires to authenticate or clarify a medical certification form, it may communicate directly with the employee’s health care provider to do so.
  • Employers may require fitness for duty certifications and may ask health care providers to address the essential functions of the employee’s own job.

New Military Provisions

On January 28, 2008, the National Defense Authorization Act for Fiscal Year 2008 (“NDAA”) (H.R. 4986) was signed into law.

Section 585 of the NDAA amends the FMLA to provide two new types of FMLA leave to employees with family members serving in the military.

Leave to Care for an Injured Service Member

The FMLA is amended to expand the maximum amount of time an employee can take off work to care for a family member with a serious health condition from 12 weeks to 26 weeks when the health condition is incurred by a member of the military while in the line of duty on active duty.

A covered service member is defined as “a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

“Serious injury or illness” is limited to mean only “an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.”

Employees eligible for this leave not only include the spouse, children and parents of the injured service member but also his or her “next of kin.” Next of kin is defined as the “nearest blood relative of that individual.”

This leave is available only during a single 12-month period and it is also combined with all other FMLA leaves, limiting FMLA leave for all purposes to no more than a total of 26 weeks of leave during a 12-month period.

Leave Due to Active Duty of a Family Member

The FMLA is further amended to provide that eligible employees are entitled to up to 12 weeks of leave during any 12-month period “because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

This qualifying reason for FMLA leave is included as part of the 12 week combined total FMLA leave available to employees in a 12-month period. Therefore, as an employee exhausts FMLA leave due the birth or adoption of a child, or due to the employee’s or a family member’s serious health condition, the amount of FMLA time remaining to the employee to use because of any qualifying exigency arising out of active duty is reduced.

In determining further what this type of leave means for employers, one must understand what a “contingency operation” is, as well as a “qualifying exigency.”

According to the United States Code a “contingency operation” is a military operation where members of the armed forces become involved in military operations or other operation that results in a call to active duty during a time of war or other national emergency.

Congress chose not to define what a “qualifying exigency” is that would permit an employee who is a spouse, parent or child of a service member to take time off of work. It is left to the DOL to define this by regulation.

Under the NDAA amendments to the FMLA, employers may require such a certificate from the service member’s health care provider to support the employee’s absence of up to 26 weeks to care for a service member injured in the line of duty. Where the leave pertains to a “qualifying exigency” and a service member’s active duty the employer may require a certification “issued at such time and in such manner as the Secretary [of the DOL] may prescribe.”

Effective Date of Military Amendment

Provisions pertaining to covered service members injured during active duty is effective immediately.

Provisions pertaining to qualifying exigencies for covered service members called up for active duty are not effective until further regulations are issued by the DOL.

In conjunctions with the proposed regulations issued on February, 11, 2008, the DOL has articulated a number of areas where it is seeking comment on the Military Amendment to the FMLA.

Conclusion and Recommendation

As to the changes that have occurred to the FMLA concerning both the Military Amendment and the soon to be finalized new FMLA regulations, employers will need to review and revise their FMLA policies and procedures.

For more information, please contact Charles P. Stevens at 414.225.8268, or

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