New leave rules under FMLA released by the Department of Labor

  Seal of the Department of Labor

The Department of Labor today released revised final regulations under the FMLA, which will take effect January 19, 2009.

Here are some highlights of the new regs:

1. Military family leave, including caregiver leave, which allows eligible employees of covered servicemembers up to 26 work weeks of leave to care for that servicemember's serious illness or injury incurred in the line of duty on active duty, and exigency leave, which allows family members of National Guard and Reserves servicemembers manage their affairs while that member is on active duty.

2. Removal of categorical penalties for employers who fail to appropriately designate FMLA leave and allowing penalties only when the employee suffers individualized harm from that failure to follow the notification rules.

3. Clarification that "light duty" assignments should not count as FMLA leave.

4. Clarification that employees may voluntarily settle or release FMLA claims without court or DOL approval.

5. Clarification of the definition of serious health condition and requirement that for long incapacities, a first visit to a health care provider (under one definition) must occur within seven days of the first day of incapacity, and the second must occur within thirty days of the first day of incapacity--additionally periodic visits must be at least two visits per year.

6. Clarification that all paid leave the employee elects to take as a substitute for unpaid FMLA leave should be treated the same and that the employee must use the same terms and conditions for that paid leave that every employee must use when taking it.

7. Requiring that an employee needing FMLA leave follow the employer's usual call-in procedures for reporting an absence in the vast majority of circumstances.

8. Reconciling with HIPAA the medical certification process, limiting what employer representatives may be told by health care providers to what is on the certification form and limiting which representatives may be told.

9. Allowing employers to request a new medical certification in each leave year.

10. Allowing employers to require that fitness-for-duty certifications specifically address the employee's ability to perform the essential functions of the employee's job and that they be provided before an employee return to work from intermittent leave when the employer has reasonable safety concerns.

Overall, the changes seem to offer important clarifications, make leave practices and requirements more uniform, and expand employee rights only in the context of servicemembers. It seems a very balanced result between employer and employee needs. There's lots of good background info on the DOL's webpage (linked below), so check it out.