NEW FMLA REGULATIONS

The U.S. Department of Labor ("DOL") recently issued a new set of Family Medical Leave Act ("FMLA") regulations that take effect on January 16, 2009.

The primary purpose of the new regulations is to implement the military family leave requirements that were enacted earlier this year. The new military family leave rules provide for two types of leave: (1) leaves of up to 26 workweeks in a single 12-month period for eligible employees to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty; and (2) leaves of up to 12 workweeks for eligible employees with covered military members serving in the National Guard or Reserves to use for "any qualifying exigency" arising out of the fact that the military member is on active duty or called to active duty status in support of a contingency operation. The new regulations define the term "qualifying exigency" for purposes of the second type of leave to include all of the following: (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) other activities not provided by the regulations but agreed to by the employer and employee. The new regulations also include two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family rules.

In addition to implementing the new military family leave rules, the new regulations also include regulatory changes and clarifications that respond to recent court decisions involving other issues under FMLA.

For example, in Ragsdale v. Wolverine World Wide, Inc., the U.S. Supreme Court struck down an earlier regulation that provided a "categorical" penalty for an employer's failure to designate leave as FMLA-protected leave. The new regulations remove the so-called "categorical" penalty provisions of the regulations and replace them with a provision that the employer may be liable where an employee suffers individualized harm because the employer failed to follow the notification rules.

In addition, the new regulations: (1) provide that an employee on a "light duty" assignment is not on FMLA leave; (2) clarify that it is DOL's longstanding position that FMLA claims can be released without DOL or court approval; (3) clarify the definition of "serious health condition;" (4) provide that all forms of paid leave offered by an employer (sick leave, vacation, paid time off) are treated the same for purposes of substituting paid leave for the unpaid leave mandated by FMLA; (5) allow employers to deny "perfect attendance" awards to employees who take FMLA-protected leave as long as the employer treats employees taking non-FMLA leave the same way; (6) clarify the employer notice requirements and the employee notice requirements; (7) modify the medical certification process; and (8) make changes to the rules regarding fitness for duty certifications.