Amendments to the Family and Medical Leave Act



On November 17, 2008, the Department of Labor (“DOL”) released new regulations which amend the Family and Medical Leave Act (“FMLA”).  The new rules become effective on January 16, 2009.  A summary of the changes is set forth below.

FMLA Leave for Military Families

The National Defense Authorization Act permits an employee to take FMLA leave for “any qualifying exigency” arising out of the fact that the spouse, 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.  The new regulations define “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.

Employee Eligibility for FMLA Leave

As you know, to be eligible for FMLA leave, an employee must have worked for an employer for at least 12 months and for at least 1,250 hours in the last 12 months (with certain exceptions).  Pursuant to the new regulations, an employer is required to count an employee’s prior service with the employer toward these required 12 months, provided that the break in service does not exceed seven years.  Also, an employer is required to count breaks in service, regardless of their duration, where the break results from fulfilling military service or where there is a written agreement (including a collective bargaining agreement) indicating the employer’s intention to rehire the employee after the break in service.

Employer Notice Regarding Eligibility

Employers now have five business days, as opposed to the two business days pursuant to the preexisting FMLA, to notify an employee of his/her eligibility to take FMLA leave.  In addition, the regulations re-affirm that employers may retroactively designate leave as FMLA-qualifying so long as the designation does not cause harm or injury to the employee.

Employer Contacts with Health Care Providers

Pursuant to the preexisting FMLA, only the employer’s health care provider was permitted to contact an employee’s health care provider for authentication and clarification of medical certification.  The new regulations allow an employer to directly contact an employee’s health care provider for purposes of clarification and authentication of a medical certification after the employer notifies the employee in writing the information that is lacking and gives the employee seven calendar days to cure the deficiency.  The contact must be made by the employer’s health care provider, human resources professional, leave administrator or management official.  An employee’s direct supervisor may not contact the employee’s health care provider under any circumstances.  In addition, an employer may directly contact an employee’s health care provider to request medical information if an employee’s serious health condition is also a “disability” within the meaning of the Americans with Disabilities Act.

Serious Health Condition

The FMLA defines a “serious health condition” as involving more than three consecutive calendar days of incapacity and two visits to a health care provider.  The new regulations clarify that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit must have taken place within seven days of the first day of incapacity.  In addition, the new regulations specify that the “three consecutive calendar days” must be “full calendar days.”

Fitness for Duty Certification

Previously, a fitness for duty certification could be a simple statement from a health care provider that the employee is able to return to work.  The new regulations allow an employer to require that a fitness certification specially address the employee’s ability to perform the employee’s essential job functions.  The employer should provide the employee with a list of the essential job functions for the employee’s health care provider to review, and indicate in the designation notice that the certification must address the employee’s ability to perform those essential functions.

Substitution of Paid Leave

Eligible employees may choose to substitute paid leave for unpaid FMLA leave.  If an employee does not choose to substitute accrued paid leave, the employer may, consistent with its current FMLA policies/procedures and any applicable contractual or collective bargaining agreements, require the employee to substitute paid leave for unpaid FMLA leave.  Under the preexisting FMLA regulations, the qualifying reason for the FMLA leave limited the type of paid leave that could be substituted for unpaid leave.  For instance, an employee on FMLA leave for the adoption of a child could not substitute accrued sick leave for an unpaid FMLA leave.  The new regulations now permit the substitution of any form of paid leave offered by an employer for unpaid FMLA leave, regardless of the reason why the employee requested FMLA leave.

Attendance Bonus

The FMLA regulations currently provide that an employee bonus based solely on attendance cannot be denied solely because of absences related to FMLA leave.  Pursuant to the new regulations, if a bonus is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, the employer may deny the employee’s bonus.

Light Duty

According to the new regulations, time spent performing “light duty” does not count against an employee’s FMLA leave entitlement.  Therefore, if an employee is performing “light duty,” the employee is not on FMLA leave.

Waiver of Rights

The new regulations clarify that employees may voluntarily settle or release their FMLA claims without court or DOL approval.

Placement of Adopted Child

Employees may take FMLA leave for adoption or foster care purposes prior to the actual adoption or placement of the child.  For example, leave can be taken to attend counseling sessions, appear in court, consult with an attorney or doctor, or submit to a physical examination.  Permissible leave prior to the actual adoption or placement now includes time to “travel to another country” to complete an adoption or placement.

Joint Employer Definition

The new regulations clarify that a joint employer relationship generally does not arise from “Professional Employer Organizations” (“PEOs”) in instances where the PEO “merely performs administrative functions.”  However, a joint employer relationship is likely to exist in circumstances where a PEO or vendor actually has the right to, among other things, hire, fire and/or assign work, based on all the facts and circumstances.

The DOL has developed new and revised forms in conjunction with the new FMLA regulations.  These forms can be found on the DOL web-site:

If you have any questions regarding these new legal requirements, please do not hesitate to contact us.


© Lamb & Barnosky, LLP, 2009