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Legal Updates

New FMLA Regulations Contain Significant Additions And Amendments


The United States Department of Labor (“DOL”) issued new Family and Medical Leave Act (“FMLA”) regulations (the “Regulations”) on November 17, 2008, establishing January 16, 2009, as the compliance deadline.  These much-anticipated Regulations are significant, having engendered nearly 20,000 public comments from employer and employee representatives during the past two years.  The new Regulations provide important clarification of employer and employee rights and obligations under the FMLA, including under the new family military leave entitlements signed into law in January 2008.


Family Military Leave

The new Regulations provide detailed guidance on the two types of family military leave now permitted by the FMLA.  First, under Military Caregiver Leave, eligible employees may take up to 26 weeks of leave in a single 12-month period to care for family members who incurred serious injury or illness during military duty.  Significantly, employees who are “next of kin” may take Military Caregiver Leave.  “Next of kin” means the nearest blood relative other than a spouse, parent, or child to the service member.  Alternatively, the service member may designate the next of kin that he or she wishes to provide care.  Next of kin are not eligible for other types of FMLA leave.

Second, under Qualifying Exigency Leave, eligible employees may take up to 12 weeks of unpaid leave to tend to certain “exigencies” that may arise when a family member is called or ordered to active duty by the National Guard or Reserves.  The new Regulations provide a list of eight qualifying exigencies:  (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; and (8) any additional activities agreed upon by the employer and employee.

Definition of Serious Health Condition

The new Regulations provide important clarification regarding the six definitions of “serious health condition.”  For example, one of the definitions requires more than three consecutive days of incapacity plus two visits to a healthcare provider for treatment.  Under the new Regulations, the two visits to a healthcare provider must occur within 30 days of the start of the period of incapacity, and the first visit must occur within seven days of the first day of incapacity.  Understanding these clarifications will help employers ensure that FMLA leave is being taken only when the employee is truly eligible for it.

Employee Certification Process

The new Regulations give employers greater latitude to determine if a medical certification actually supports the employee’s leave request, provided that specific safeguards are followed.

In particular, under the new Regulations, certain employer representatives (e.g., human-resources representatives, leave administrators and management officials) may contact the employee’s healthcare provider directly to authenticate a certification form or obtain additional information needed to determine whether the employee has a “serious health condition.”  Importantly, under no circumstances may this person be the employee’s direct supervisor.

As additional safeguards, the employer (a) must first notify the employee in writing if the medical certification is insufficient or incomplete and give the employee seven days to provide the information requested; and (b) must not ask the healthcare provider to offer information outside of what is requested on the certification form.  The new Regulations also update the optional certification form by separating it into employee and family-member forms.

In determining an employee’s eligibility for FMLA leave, employers may now consider other medical information.  This change should enable employers to consider, for example, information provided to establish eligibility for ADA accommodations or workers’ compensation benefits.

Employer Notice Requirements

The new Regulations overhaul the prior employer notice obligations by requiring that employers provide a general notice of employee FMLA rights, a notice of eligibility, a rights and responsibilities notice, and a designation notice.  The notice of FMLA rights must be posted in the workplace and added to the employer’s employee handbook.  If the employer does not have an employee handbook, then a written notice of FMLA rights must be provided at the time of hire.

The other notices reflect a new procedure for responding to requests for FMLA leave.  Specifically, two of the new notices—the eligibility notice and the rights and responsibilities notice—replace the “Employer Response to Employee Request for FMLA Leave” form required by the prior Regulations.  These new notices must be provided within five business days after the employee requests FMLA leave or the employer learns of the FMLA-qualifying event.  In this respect, the time to respond to an FMLA leave request has been extended from two to five business days.  Similarly, the employer must provide the designation notice within five business days after receiving sufficient information to determine that a requested leave qualifies for FMLA coverage.

Substitution of Paid Leave for Unpaid Leave

Under the new Regulations, when an employee substitutes accrued paid leave (e.g., vacation time) for unpaid FMLA leave, the employee must follow the terms and conditions of the applicable leave policy.  So, for example, if an employer’s vacation policy prevents vacation from being taken in half-day increments, then an employee may not substitute accrued vacation time for unpaid FMLA leave in half-day increments.  The employer, though, may voluntarily waive any such requirements so as to permit employees to substitute paid leave more liberally.  Additionally, the new Regulations treat all forms of accrued paid leave the same for purposes of substitution.  This departs from the prior Regulations, which had special rules regarding the substitution of paid sick leave.

Light Duty Work

Under the new Regulations, returning an employee to light-duty work suspends the 12-week FMLA leave entitlement period and preserves the employee’s right to be restored to his or her previous position.  This significantly changes the prior Regulations, which counted light-duty work toward the 12-week FMLA leave period and, correspondingly, did not hold an employee’s job in abeyance while he or she performed light-duty work.

Settlement of FMLA Claims

Under the new Regulations, employers may obtain a release from current or former employees settling past, but not prospective, FMLA claims without approval of the DOL or a court.  While the DOL had taken the position that employees may release FMLA claims in separation agreements, various courts ruled that such releases are unenforceable.  The new Regulations codify the DOL’s position, marking a significant positive development for employers.

Penalties/Damages for Noncompliance

The new Regulations clarify that an employer can be liable for failing to provide required FMLA notices only if the employee suffers individualized, actual harm, such as lost compensation or benefits, as a result.  This codifies the United States Supreme Court’s decision in Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002).  Ragsdale invalidated the prior Regulations insofar as they penalized employers for failing to provide required FMLA notices, regardless of whether this harmed the employee.


As employers take steps to achieve full compliance with the new Regulations, they should immediately:

  • Update their FMLA compliance packages to include new notices and forms;
  • Update their employee handbooks and related policies to comply with the new Regulations (e.g., by including the required notice of FMLA rights, specifying the criteria for family military leave eligibility, and reflecting the required certification obligations);
  • Post all new posters in the workplace; and
  • Train managers and human-resources staff about the new requirements and their compliance obligations.


The Firm routinely provides seminars and individualized training on compliance with the FMLA and its new Regulations.  In addition, the Firm has updated its FMLA Compliance Package, a tool created to assist employers in becoming fully compliant with the FMLA and applicable cognate state laws.  We would be happy to address any inquiries that you may have about federal and/or state family and medical leave obligations.