On November 17, 2008, the United States Department of Labor issued final regulations that made significant changes to the Family Medical Leave Act (“FMLA”). Employees are covered by FMLA if they have worked for their employer for at least 12 months, have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within a 75 mile radius. What follows is a summary of new regulations that took effect January 16, 2009.

Notice Provisions
Employers covered by FMLA are required to notify employees that they are a FMLA covered employer. This can be done by providing a notice to the employee upon hiring the employee or by providing some other form of written notice.

When an employee requests leave under FMLA or the employer has reason to believe that the nature of employee’s leave may qualify under FMLA, the employer must provide the employee with an eligibility notice, a rights and responsibility notice and a designation notice. Sample forms are provided in the final regulations. The final regulations state that the eligibility and designation notices must be provided within 5 days of the request of the employee or when the employer had reason to believe that the employee’s leave may qualify under FMLA.

The final regulations also make some changes to the time frame by which employees must give notice to their employer.  Employees must still provide 30 days’ advance notice of the need for leave, however, if 30 days is not possible, the employee must give the employer notice as soon as possible, which is defined as the same day or the next business day after the need for leave becomes known to the employee.

Breaks in Service by Employee
In determining whether or not the employee meets the 12 month employment requirement set forth above to be eligible for FMLA leave, employment periods preceding a break in service of more than seven years are not counted, unless the employee’s break in service was because of a required military service obligation, or because an agreement by and between the employer and the employee guarantees the employer will rehire after the employee experiences a break in service.

Defining the Twelve Month Period in Which an Eligible Employee Can Take the Twelve Weeks of FMLA Leave
The employer can use one of the following four methods for defining the 12-month period for FMLA leave:

  • The calendar year;
  • Any fixed 12-month period;
  • A 12-month forward period measured forward from the date of an employee’s first day of FMLA leave; or
  • A rolling 12-month period measured backward from the date of an employee’s first day of FMLA leave.

Military Leave Regulations
The final regulations define what constitutes “qualified exigency” and “military caregiver” leave.

Qualified Exigency Leave
This leave allows an employee to take up to 12 work weeks of leave arising out of the employee’s spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the armed forces. The regulations define the term “qualifying exigency” to include eight specific activities: short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities where the employer and employee agree to the leave.

Military Caregiver Leave
Eligible employees are entitled to take up to 26 work weeks of leave in any 12-month period to care for a spouse, child, parent or next of kin who is a covered service member with a serious injury or illness incurred in the line of duty on active duty. A “next of kin” is a service member’s nearest blood relative (other than the individual’s spouse, parent, son or daughter) in the following order of priority: blood relatives who have been granted legal custody of the service member, brothers, sisters, grandparents, aunt, uncles and first cousins.

Conclusion
Employers should immediately incorporate the changes for nonmilitary and military leave into their existing FMLA policies, adopt the new certification forms and general, eligibility, rights and responsibilities, and designation notices, and ensure that key personnel understand the changes to FMLA to ensure company compliance in the future.