2009 FMLA Revisions

Jane Flynn
July 26, 2009 — 1,939 views  
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In January 2008, President Bush signed into law the first-ever amendments to the Family and Medical Leave Act (FMLA) and on November 17, 2008, the Department of Labor (DOL) published its final rule on the implementation of these amendments.  The amendments went into effect on January 16, 2009. 

Highlights of these amendments include:

  • Military Family Leave
    • Under the new amendments, employees, who are family members of covered servicemembers and who satisfy the FMLA eligibility requirements, may take up to 26 workweeks of leave in a single 12-month period to care for a covered servicemember with a serious illness or injury incurred in the line of duty while on active duty. A covered servicemember is defined as a current member of the Armed Forces, including a member of the National Guard or Reserves. In addition, the new revisions extend the FMLA protection to additional family members (i.e. next of kin) beyond those who may take the FMLA leave for other qualifying reasons.
    • The new amendments also allow the spouse, parent or child of members of the National Guard or Reserves to take up to 12 workweeks of leave in a single 12-month period for "qualifying exigencies" while the member is on active duty or called to active duty in support of contingency operations. Such qualifying exigencies include short-notice deployments, attending military events and related activities, organizing childcare and school activities, managing financial and legal arrangements, counseling, and attending post-deployment activities.
    • An employer may require an eligible employee requesting FMLA leave to provide certification for leaves due to a "qualifying exigency" and to care for a covered servicemember.
  • Serious Health Condition
    • The amendment also clarifies the definition of "serious health condition." First, one definitions of "serious health condition" involves more than three consecutive, full calendars days of incapacity plus "two visits to a health care provider." Under the amended definition, the two visits must occur within thirty days of the beginning of the period of incapacity and the first visit to the health care provider must take place within seven days of the first day of incapacity. A second way to satisfy the definition of "serious health condition" involves more than three consecutive days of incapacity plus a regimen of continuing treatment. Under the new revision, the first visit to the health care provider must take place within seven days of the first day of incapacity. Lastly, "periodic visits" for chronic serious health conditions must be at least two visits to a health care provider per year.
  • Substitution of Paid Leave
    • The amendment further provides clarification to the procedural requirements to the use of vacation or sick leaves with regards to the FMLA leave. Under the current regulations, there are different requirements to the use of vacation or personal leave than to medical or sick leave. Accordingly, under the new revisions, there will be no differentiation between the type of paid leave substituted. An employee electing to use any type of paid leave must qualify for paid leave under the employer's paid leave policy.
  • Medical certification
    • The DOL has added a requirement that specifies that in contacting a health care provider about authentication or clarification of a medical certification, the employer's representative must be a health care provider, human resource professional, a leave administrator or a management officer, but under no circumstance may it be the employee's direct supervisor. The employer may not ask the health care provider for additional information beyond that is required by the certification form. In the event the employer believes a medical certificate is deficient, the employer must specify in writing the information that is lacking and give the employee seven days to cure.
    • The new amendment allows employers to request certification of an ongoing condition every six months in conjunction with an absence.
  • Fitness-For-Duty Certification
    • Under the amendments, employers requiring employees to submit this type of certification prior to returning to work from a FMLA leave for the employee's own serious health condition may now also require that the health care provider expressly determine whether the employee could perform the essential job functions of his/her job. However, in order to require such a certification, the employer must provide the employee with a list of his/her position's essential functions no later than when the employer provides a designation notice and the employer must indicate in the designation notice that the certification must address the employee's ability to perform those essential functions.
    • Employer may also require such certification up to once every thirty days for employees who elect to take an intermittent or reduced leave schedule if reasonable safety concerns exist regarding the employee's ability to perform his/her duties, based on the serious health condition for which the employee took such leave. If an employer elects to have such a requirement, then the employer must inform the employee of such requirement at the same time it issues the designation notice
  • Employee's Notice Obligation
    • The revisions also elucidate how employees are to provide notice to their employers when taking an unforeseeable FMLA leave. The final rule provides that an employee needing an unforeseeable FMLA leave must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case, and the employee must follow the employer's usual and customary call-in procedures for reporting a leave, absent unusual circumstances.
  • Light Duty Work
    • The amendments further clarify that the time an employee spends doing "light duty" assignments does not count against the 12-week FMLA leave an eligible employee entitled. In addition, the employee's right to restoration is suspended during the period of time the employee performs this type of work or until the end of the applicable 12-month FMLA leave year.
  • Penalties
    • The final rule also includes several technical regulatory changes to reflect the United States Supreme Court decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S. Ct. 1155 (2002). Under the new revisions, an employer who fails to timely to provide a designation notice may be liable to the employee for any individualized harm such as compensation and benefits lost by reason of the violation and other actual monetary losses sustained as a direct result of the violation. The employee may also receive equitable relief including reinstatement, promotion or any other relief tailored to the harm suffered. The new amendments removed previous categorical penalties that were found to be inconsistent with the statutory entitlement to only 12 weeks of FMLA leave as held in Ragsdale.
  • Waiver of Rights
    • Furthermore, the new revisions codified the DOL's longstanding position that an employee may settle or release a FMLA claim against his/her employer without the court or the DOL's approval.
  • The new amendments further states that employers may deny employees a "perfect attendance" award for employees who do not have perfect attendance due to the taking of FMLA leave as long as these employees are treated the same as other employees who take non-FMLA leave

Jane Flynn


Jane M. Flynn is a Principal Attorney with the law firm of Payne & Fears LLP, where she specializes in labor and employment law. Prior to joining Payne & Fears LLP, Ms. Flynn was an associate in the Litigation Section of Jones, Day, Reavis & Pogue LLP. She received her juris doctor in 1993 from Hastings College of the Law and her B.A. with honors in 1987 from the University of California at Santa Cruz. Ms. Flynn represents employers in all aspects of employment law, including discrimination, harassment, wrongful termination, breach of contract and trade secret litigation.