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Sunday, December 14, 2008

New FMLA Rules

New FMLA Rules: Countdown to January 15, 2009
Reprint - Opelika-Auburn News, Dec. 14, 2008

The Department of Labor (DOL) published 750 pages of final regulations governing the Family and Medical Leave Act (FMLA) effective January 16, 2009. Here are a few of the highlighted changes (there are many more):

Who is an “Eligible” employee?
The FMLA requires that employees must work for an employer for at least 12 months to be eligible, but these 12 months need not be consecutive. The final regulations allow for a break in service of up to seven (7) years.

Serious health condition redefined:
"Continuing treatment by a health care provider" requirement has been clarified to require that the two visits must occur within 30 days, and the first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances. When it involves only one visit, plus continuing treatment, has been clarified to require that the visit must occur within seven (7) days of the first day of incapacity. "Periodic treatment" of a chronic serious health condition has been clarified to mean at least twice a year.

What is a Military Leave “Qualifying Exigency”?
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.

Intermittent or reduced schedule leave changes
Employers must calculate intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.

Substitution of paid leave for FMLA Leave
Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave, including vacation, personal time, PTO etc..
Bonuses entitlement: A huge change is that employees may now be disqualified from receiving a perfect attendance award due to FMLA leave.

Light duty does not count as FMLA time
Light-duty assignments do not count as FMLA leave time.

New Employer notice requirements
A general FMLA notice may be distributed by handbook, or to each new employee upon hire, rather than requiring that it be distributed to all employees annually as the old regulation required. Employers now have to notify employees of their eligibility to take FMLA leave within five (5) business days (was two), and have five (5) business days in which to notify employees in writing of whether or not leave is designated as FMLA leave and other information set forth on the new response form.

Employee notice requirements defined:
Employers may require employees to follow their usual notice and procedures for requesting leave, so long as the employer's usual reporting procedure is not more stringent than the FMLA allows.

Medical provider contact expanded:
Employers may now contact the employee's health care provider directly and without the employee's consent. The direct supervisor is prohibited from making contact. Employees can also be required to sign a HIPAA release to allow the employer to obtain medical information.

Brand New FMLA Forms
The are 5 new forms and a mandated notice published with the final rules

Updated FMLA Policy
Beginning January 15, 2009 all existing employer FMLA policies and forms will be out of compliance.

5 Practical Human Resources Steps Alabama Employers Need to Take Now to Brace for FMLA Changes:
  1. Update your FMLA Policy
  2. Update all your FMLA Forms
  3. Audit all your leave procedures
  4. Train all Supervisors on the new procedures and their key roles
  5. Update your posters
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at