This past year the United States Congress amended the Family & Medical Leave Act (FMLA), and on January 16, 2009 the Department of Labor’s regulations reflecting those amendments become effective. 

Attorneys representing employees have fretted for some time worrying that these new regulations could undercut some important protections.  We are happy to note that, overall, the changes appear to be quite positive and employee friendly. 

Among some of the most significant changes to the regulations are provisions creating military family leave entitlements.  First, the Military Care Giver provision allows an employee to take up to 26 weeks of protected “military caregiver leave” during a twelve month period to care for a spouse, child parent or next of kin who incurred a serious illness or injury in the line of duty in the armed forces, National Guard or Reserves.  Only current members of the military or individuals on the temporary disability retired list are considered covered service members, so there is no protected leave for retired servicemembers.  The twenty-six weeks of protected leave can, however, extend to care for more than one member of the military or subsequent serious illnesses or injuries to the same member of the military.  29 C.F.R. § 825.127. 

Additionally, the “Qualifying Exigency Leave” provision allows employees to take up to twelve weeks of leave for circumstances relating to family members in the National Guard or Reserves but not relating to any serious illness or injury.  Qualifying exigency leave may be taken in any of eight specific circumstances including, for example, (1) to provide emergency childcare or attend school activities which would otherwise be taken care of by a family member who has been called to active duty, (2) to spend up to seven days with a covered military member who has been notified of a call to duty only seven or fewer day before s/he will be deployed, or (3) to attend various post-deployment activities including arrival ceremonies, reintegration briefings,  or to address issues arising from the death of a covered military member.  29 C.F.R. § 825.126.

In addition to the military provisions, the new amendments clarified many previously existing provisions of the FMLA.  The changes that affect employees are as follows:

• If an employee accepts “light duty” assignments while recovering from a serious health condition that does not count against his/her FMLA leave.  29 C.F.R. § 825.220.
• Where a workforce consists of a “significant portion” of workers who are not literate in English, the employer must provide FMLA notices in the language which the workforce can understand.   29 C.F.R. § 825.300(a)(4).
• Where an employer awards bonuses or other benefits for achieving perfect attendance or other such goals regarding hours worked, the employer cannot deny an employee that bonus or benefit based on taking FMLA leave unless the employer would also deny an employee who had taken non-FMLA leave, such as scheduled vacation.  29 C.F.R. § 825.215(c)(2).
• The definition of “serious health condition” has been clarified by 29 C.F.R. § 825.115 as follows:

o  The “three consecutive calendar days of incapacity plus two visits to a healthcare provider” definition requires that the two visits occur within thirty days of the period of initial incapacity, absent extenuating circumstances.

o  The “three consecutive calendar days of incapacity plus a regimen of continuing treatment” definition requires that the first visit to a healthcare professional must occur within seven days of the initial incapacity. 

o  “Periodic visits to a healthcare provider” for chronic serious health conditions requires at least two visits to a healthcare provider per year.

This is a sampling of the revised regulations which we believe will be most beneficial to employees. 

To view a full list of the amended and revised regulations visit: http://www.federalregister.gov/page2.aspx#reg_W