On November 17, 2008, the U.S. Department of Labor (DOL) published final regulations implementing the first major overhaul in over 10 years to the Family and Medical Leave Act (FMLA) to become effective January 16, 2009. Two new leave entitlements – military caregiver leave and qualifying exigency leave have been created.
 
Military caregiver leave is available to eligible employees who are family members of a covered service member who has a serious illness or injury incurred in the line of (active) duty. Eligible employees will be able to take up to six months (26 workweeks) of leave in a single 12 month period to care for the service member. Employers must use the rolling calendar methods; the 12 month period begins when the employee starts using military caregiver leave. The calendar year method will not be an option for employees using this type of leave. The military caregiver leave entitlement provides for each service member and for each illness or injury incurred.
 
Family members of the National Guard and Reserves are eligible for exigency leave when a member is on active duty or called to active duty status in support of a contingency operation. The 12 week leave allowance may be used all at once or intermittently. A qualifying contingency includes a broad category of reasons and activities, including short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and any additional activities agreed to by the employer and the employee.
 
The new rule also states that a “serious health condition” is defined as two visits to a health care provider occurring within 30 days of the start of the period of incapacity. The first visit to the health care provider must occur within seven days of the start of the incapacity. Medical certification requirements, including the ability to gather missing or insufficient information on a form, are also addressed in the new rule.
 
The new regulations expand the information that an employer may require in a fitness for duty certification. An employer may now require that the certification specifically address whether the employee can perform the essential functions of his or her job. Also, if an employer has reasonable concerns about an employee’s ability to safely perform a job, the employer can require an employee to provide a fitness for duty certification before the employee returns to work following an absence while on intermittent leave.
 
The final regulation also consolidates the particular types of notice employers must provide to their employees, as well as additional related information into one section. Employees must now comply with an employer’s policies for reporting an absence, unless unusual circumstances prevent this, when the need for FMLA leave is required. Employees may now use accrued paid leave as a substitute for unpaid FMLA leave, and employers may require employees to exhaust all paid leave before taking unpaid leave. An employee must comply with the company’s policy for requesting such leave.
 
Employers will be required to post new FMLA posters. These posters are available the week of 12.08.08 through your Client Service Professional (CSP). SCI’s Client Notice regarding this change is posted to Client Self-Service (CSS)/Reporting Services/Human Resources/Client Notifications and Critical Updates, our website News & Events page and will be mailed in all Payroll Packets.  
 
A complete overview of the recent changes to FMLA can be found on the following website: www.dol.gov/esa/whd/fmla/.