The new FMLA: 9 changes you must comply with

For the past 15 years, complying with the FMLA has been complex, but at least the law (once you figured it out) stayed the same.

On Jan. 16, 2009, that all changed. That’s the day the first major overhaul of the FMLA took effect.

Last year, the U.S. Department of Labor (DOL) published the final version of those changes. The regulation update comes after two years during which the DOL received more than 20,000 suggestions on changes from employers and employee groups.

“The new rules drastically change the way much of the FMLA works,” said Matthew Effland, an employment law attorney with Ogletree Deakins in Indianapolis. “Some changes favor employers by offering greater flexibility in administering leave. But it’s imperative that HR professionals move quickly to update their policies so they don’t inadvertently violate the law.”

Here are the most important changes in the new FMLA regulations:

1. New military caregiver leave. Employees are allowed to take up to 26 weeks of unpaid FMLA leave in each 12-month period to care for family members who suffered a serious injury or illness while on active military duty.

2. New leave for families of National Guard and Reserve members. Families of National Guard and Reserve personnel on active duty are allowed to take up to 12 weeks of job-protected FMLA leave per year to manage their affairs.

The FMLA leave of the employee (a spouse, son, daughter or parent of the military member) must be related to certain qualifying circumstances related to the military service. The rules define a qualifying situation as one involving: (1) short-notice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities in which the employer and employee agree to the leave.

3. Revised definition of a “serious condition.” The new regulations tinker with the definition of an FMLA-qualifying “serious health condition.” The law says a serious condition must involve more than three consecutive calendar days of incapacity plus “two visits to a health care provider.” One court (the 10th Circuit) threw a wrench into the works by ruling that those two doctor visits must occur within the more-than-three-day period of incapacity. The new rules clarify that those two visits must occur within 30 days of the period of incapacity.

4. Direct contact with doctor allowed. Good news: The new regulations allow employers to directly contact an employee’s health care provider to seek clarification about information on an employee’s FMLA certification form.

Note: An employee’s “direct supervisor” is prohibited from making such inquiries. The rules give this right only to a “health care provider, a human resources professional, a leave administrator (including third-party administrators), or a management official.” Also, employers can’t ask doctors for information beyond what is required by the certification form.

5. New employer notice obligations. In addition to conspicuously posting a notice about your FMLA and complaint-filing procedures, you must provide the same notice in your employee handbooks (or distribute a copy of your FMLA policy upon hire).

The good news: Employers will now be given five business days—instead of two—to send out FMLA eligibility and designation notices to employees.

6. Less leeway for employees’ notice. Previously, the law was interpreted to allow employees to give notice of their need for FMLA leave up to two business days after being out on FMLA leave, even if they could have given notice earlier.

But the new rules say that, in most cases, employees who take intermittent FMLA leave must follow the employer’s call-in procedures for reporting an absence, unless there are unusual circumstances.

 7. Settlement of past FMLA claims allowed. The rules clarify that employees can retroactively (typically as part of a severance or settlement agreement) volunteer to settle their FMLA claims with their employers without getting court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.

 8. Light duty doesn’t count as FMLA leave. The rules make clear that the time employees spend performing “light-duty” work does not count toward their 12 weeks of FMLA entitlement. (This was included because at least two courts ruled that employees used up their 12 weeks of FMLA leave while on light-duty assignments after FMLA leave.)

9. Perfect-attendance awards can be denied. Employers can deny perfect-attendance awards to employees who take FMLA leave (and thus are absent) as long as they treat employees taking non-FMLA leave the same way.