New FMLA Regulations Effective January 16, 2009

The Department of Labor’s new regulations for the FMLA become effective on January 16, 2009. These are the first significant revisions to the FMLA regulations since the law was enacted 15 years ago. The new regulations will impact all employers subject to the FMLA. The new FMLA regulations also incorporate new military family leave provisions enacted as part of the National Defense Authorization Act for Fiscal Year 2008.

Under the FMLA, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: (i) the birth and care of the newborn child of the employee; (ii) the placement with the employee of a son or daughter for adoption or foster care; (iii) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (iv) to take medical leave when the employee is unable to work because of a serious health condition.

A “covered employer” under the FMLA is any person employing 50 or more employees within 75 miles of the worksite. An “eligible employee” must have been employed for at least 12 months by the covered employer and for at least 1,250 hours of service with the employer for the 12-month period preceding the leave.

The military-specific provisions of the new FMLA regulations provide additional qualifying leave rights to eligible employees. Eligible employees working for covered employers may take FMLA leave for up to 12 weeks in the event certain circumstances arise out of a relative being called to active duty in the National Guard and Reserves. Also, under the new regulations, an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to a total of 26 weeks of FMLA-protected leave during a single 12-month period to care for the servicemember.

The more notable changes to the FMLA regulations impacting all employers include:

Serious Health Conditions: An employee meets the definition of a serious health condition if, in connection with a period of incapacity of more than three consecutive calendar days, the employee or family member is treated by a health care provider at least twice within 30 days of the first day of the incapacity. In addition, a chronic serious health condition under the act is clarified to mean that the employee has visited a health care provider at least twice per year for the same condition.

Pregnancy: The new FMLA regulations clarify that a husband is entitled to FMLA-protected leave to care for his wife who is incapacitated due to her pregnancy. The regulations clarify that leave to care for a pregnant woman is available only to a spouse, and not a boyfriend or fiancé who is the father of the unborn child.

“Perfect Attendance” and Similar Awards: The new FMLA regulations permit employers to disqualify employees from bonuses or other special payments based on a specific job-related performance goal when the employee did not meet that goal due to FMLA leave, so long as the employer does not discriminate in the disqualification of employees.

General Notice: The new FMLA regulations retain the current requirement that covered employers must post the general FMLA notice, even if no employees are eligible for leave. The required posting may now be made electronically.

Eligibility Notice: The new FMLA regulations continue to require the employer to communicate FMLA eligibility status to an employee, but extends the timeframe for an employer to respond to an employee’s request for leave from 2 days to 5 days. If an employer determines that an employee is not eligible for FMLA leave, the employer must inform the employee and list the potential reasons why the employee is ineligible.

Employees Notifying Their Employers of the Need for Leave: The new FMLA regulations require employees to comply with the employer’s usual procedures for calling in and requesting leave, except where unusual circumstances exist.

Medical Certifications: An employer now has 5 days within which to request medical certification of an employee’s need for FMLA leave due to a serious health condition. In a departure from the proposed regulations, one new provision prohibits direct supervisors from contacting an employee’s health care provider when additional information regarding medical certification is needed, apparently to protect the employee’s privacy. An employer may seek recertification of an employee’s medical condition every 30 days in connection with an absence.

Certifications for Fitness-For-Duty: The new FMLA regulations provide that an employer may in certain circumstances require a fitness-for-duty certification that addresses the employee’s ability to perform the essential functions of the employee’s job.

This is a brief summary of just some of the changes to the FMLA regulations. Employers are encouraged to review the new regulations in connection with an employee’s specific request for leave. Consult with your attorneys regarding your compliance with the new regulations, and the FMLA as a whole.


Jeff Sykes is an attorney with the law firm McConnell Wagner Sykes + Stacey PLLC. He represents businesses and individuals with legal problems and concerns involving contracts, construction, insurance, employment, and real property matters.

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