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DOL issues final rule to update FMLA regulations

On November 17, 2008, the U.S. Department of Labor issued a final rule to update the Family and Medical Leave Act regulations designed to add clarity to rules and understanding of how the FMLA is to be applied in the workplace to covered employers and employees. In addition, the regulation provides guidance on implementing the new military leave benefit that was enacted in January 2008.

Under this expansion, employers are required to offer up to 26 weeks of unpaid leave in a 12-month period to a spouse, son, daughter, parent, or next of kin (as defined in the regulations) who care for a covered service member with a serious duty-related injury or illness. In addition, employers must provide 12-weeks of FMLA leave to immediate family members, defined as spouses, children and parents, of Reservists and members of the National Guard who have “qualifying exigencies.”

The rule defines "qualifying exigencies" as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

Here are some of the highlights of the other aspects of the regulations:

Serious Health Condition: While the rule retains the six individual definitions of "serious health condition," it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Further it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.

Light Duty: Under the final rule, time spent in "light duty" work does not count against an employee's FMLA leave entitlement.

Fitness-for-duty test: employers may require fitness-for-duty tests for employees returning from intermittent FMLA leave, if doing the job raises a serious risk of harm to themselves or others.

Employer Notice Obligations: the final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.

Employee Notice: Under the final rule, the employee must follow the employer's normal and customary call-in procedures, unless there are unusual circumstances. Previously, employees had up to two days after an absence to notify the employer of the need for a leave.

Medical Certification: Responding to concerns about medical privacy, the rule adds a requirement that limits who may contact the health care provider and bans an employee's direct supervisor from making the contact.

New Certification Forms: The final rule splits the optional certification Form WH-380 into two separate optional forms, one for the employee’s own serious health condition (Form WH-380-E) and one for the serious health condition of a covered family member (Form WH-380-F). The new forms are at the end of the final rule, which clarified that an employer may provide a statement of the employee’s essential functions to the employee’s health care provider when the employer requires certification.

The final rule also adds a new optional form (Form WH-385) for an employee to support a request for leave to care for a covered service member with a serious injury or illness.

An employer covered by FMLA is any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

An `”eligible employee'' is an employee of a covered employer who:
   (1) Has been employed by the employer for at least 12 months, and
   (2) Has been employed for at least 1,250 hours of service during the 12-month period
        immediately preceding the commencement of the leave, and
   (3) Is employed at a worksite where 50 or more employees are employed by the
        employer within 75 miles of that worksite. (See Sec. 825.105(a) regarding employees
        who work outside the U.S.)

The final rule is effective January 16, 2009. Click here for the text.