DOL Issues New FMLA Regulations
July 12, 2009 by Beeson Tayer & Bodine
Revisions to the Department of Labor’s regulations for the Family Medical Leave Act (“FMLA”) took effect January 16, 2009. The revisions apply only to the FMLA and not the related California law, California Family Rights Act (“CFRA”), so where CFRA provides greater rights and protections for employees than FMLA, the CFRA regulations apply.
The new regulations address recently enacted Military Family Leave which provides two new leave entitlements. Family members are eligible to take up to 26 workweeks of leave in a 12-month period to care for a family service member with a serious illness or injury incurred in the line of duty. This leave entitlement applies to a parent, spouse, or child as well as “next of kin” (i.e., nearest blood relative). In addition, employees may take up to 12 workweeks of FMLA leave due to a “qualifying exigency” caused by a family member in the National Guard or Reserves being called to duty to participate in an active military operation. Qualified exigencies for which employees can use leave include: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and postdeployment activities. Note: leave taken under these provisions does not count against an employee’s CFRA leave entitlement.
The new regulations also make changes in the FMLA notice and certification process. These changes generally make the process more onerous for employees. First, employees are now required to provide thirty days advance notice of foreseeable leave or explain why it was not practicable to give such notice. For nonforeseeable leave, the employees now have to comply with their employer’s usual and customary notice procedures absent “unusual circumstances.” The new regulation also require an employee to give more information when requesting leave, including referencing the qualifying reasons for a leave when the employee has previously taken leave for the same reason. The new regulations also allow employers to request medical diagnosis information. Note: CFRA specifically precludes employers from requesting a medical diagnosis and therefore employers in California should not be using a medical certification form that requests or requires a diagnosis.
The new regulations now allow an employer to require a fitness for duty certification for intermittent leave users every 30 days if there is a reasonable safety concern. They also put a higher burden on employees with intermittent leave to make a “reasonable effort” to schedule treatment so as not to unduly disrupt the employer’s operation. These are just some of the many changes to the regulations, which are located at http://www.dol.gov/esa/whd/fmla/finalrule.htm. Please contact our offices for additional information or guidance regarding these new regulations.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
