Do you employ 50 or more employees? If so, you may be covered by the federal Family and Medical Leave Act ("FMLA"). The FMLA provides an unpaid, job protected leave of up to 12 weeks per year for an employee's serious health condition, the serious health condition of a covered family member or the birth or adoption of a child of an employee. In 2008, Congress expanded the FMLA's 12 week leave requirement to grant eligible employees additional leave to care for service member relatives injured in the line of duty, or for qualifying "exigent" circumstances relating to the deployment of reservist relatives of employees.

In addition, the Department of Labor has completely rewritten and expanded its regulations implementing the FMLA to clarify various important issues affecting employers. The new regulations, which are effective as of January 16, 2009, are a mixed, if large, bag for employers. (The regulations, including the Department of Labor's commentary, now top out at over 700 pages). Some of the changes made by the Department of Labor actually help employers by clarifying an employee's obligations when seeking leave, while others impose additional burdens to which employers should pay special attention. Although there are a variety of changes, among the most important revisions made to the FMLA's regulations are:

  • The definition of "continuing treatment." Under the FMLA, an employee's medical condition qualifies as a "serious health condition" if that employee is incapacitated for three consecutive full calendar days and under the "continuing treatment" of a health care provider. The old regulations did not clearly define "continuing treatment." Under the revised regulations, in order to satisfy the "continuing treatment" requirement, an employee must (a) see a health care provider within seven days of the employee first becoming incapacitated, and (b) see a health care provider two times within thirty days of the employee first becoming incapacitated. With respect to chronic serious health conditions, an employee must see a health care provider at least twice per year.
  • The impact on an employee's FMLA leave entitlement of an employer's provision of light duty work to the employee. Under the FMLA, an employee whose serious health condition renders the employee unable to perform any of the essential functions of his or her job is entitled to FMLA leave and may not be required to accept light duty assignments. This raises a potential conflict between the FMLA and various state workers' compensation laws, which penalize employees for refusing to accept available light duty assignments. In order to harmonize the FMLA with these state laws, the new regulations clarify that if an employee does accept a light duty assignment, that light duty work does not count against the employee's FMLA leave entitlement. Moreover, the regulations now provide that an employee's right to job restoration is held in abeyance while the employee is performing light duty work until the end of the applicable 12‐ month FMLA leave year.
  • Employer notice requirements. Under the old regulations, there were two notices that employers were obligated to provide to employees: the FMLA poster (Form WH‐1420) and the Employer Response form (Form WH‐381). The new regulations increase the number of required notices to three: a new FMLA poster, a new Notice of Eligibility and Rights and Responsibilities form and a new Designation Notice form.
  • Medical certification requirements. Several important changes were made to the regulations regarding medical certifications which should greatly assist employers in obtaining better medical information regarding an employee's serious health condition. Under the new regulations, employers may now obtain information regarding a health care provider's specialization, certification from the health care provider that intermittent leave is medically necessary, a detailing of which essential job functions an employee cannot perform and more detailed information regarding the expected frequency and duration of intermittent leaves.

If your organization is covered by the FMLA, it is important that you take steps now to come into compliance with these new regulations. Employers should revise their current FMLA policies and provide training for human resource professionals regarding the new laws and regulations. As always, please do not hesitate to contact Buchalter Nemer's Labor and Employment Department should you require assistance with this or any other employmentrelated topic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.