Ottone Leach Olsen & Ray LLP

Employers with more than 50 employees must comply with the Family and Medical Leave Act (FMLA). For the first time since the FMLA’s enactment, the U.S. Department of Labor has issued significantly revised regulations, which become effective on January 16, 2009. The regulations are too long to summarize in this article, but here are some highlights:

• “Absent unusual circumstances”, employees will be required to follow their employer’s call-in policies when they are planning to miss work.
• To have a “chronic condition” that qualifies for FMLA leave, employees will have to certify that they visited a doctor at least twice a year for that condition.
• Direct supervisors will be prohibited from getting an employee’s medical information when a FMLA certification is needed.
• Employers will be able to require fitness-for-duty tests for employees returning from intermittent leave if doing the job raises a significant risk of harm to the employee or others.
• Light duty will not count against the employee’s FMLA leave entitlement.
• The regulations provide additional clarification of the type and frequency of treatments that employers must receive under the “chronic” and “continuing treatment” definitions of a serious health condition.
• The regulations also contain: 1) more detailed guidance on the substitution of paid leave for FMLA leave and 2) substantial new notice requirements for employers.
• The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for next of kin of seriously injured or ill service members:

“Next of kin” eligible to take the additional military FMLA leave includes grandparents, aunts, uncles, first cousins, and any relative so designated by the service member — not just spouses, parents, and children.

The 26 weeks can be taken over a 12-month period, with the clock running from the first day of the leave.

The military caregiver leave may be taken once per injury, but more than one family member may qualify for it, and each relative may take leave again if there are other injuries.

Relatives of those called to active duty in the National Guard and Reserves (not regular active-duty military members) may take up to 12 weeks of leave for qualifying “exigencies”. A variety of deployment-related reasons would be covered, including , but not limited to: 1) short-notice deployment, 2) military events and related activities, 3) child-care and school activities, 4) financial and legal arrangements, 5) counseling, 6) post deployment activities, and 7) rest and recuperation. “Rest and recuperation” means that the employee may take up to five days of leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment.

Employers who are required to comply with FMLA are advised to revise their policies and handbooks in order to reflect these changes to the Act.