The 2009 Family And Medical Leave Act Amendments – An Overview - ABA YLD 101 Practice Series

By Jason M. Nutzman

On January 16, 2009, new regulations interpreting the Family and Medical Leave Act ("FMLA") went into effect. These regulations are the first major revisions to the FMLA since 1994.

The new regulations now permit employees to take FMLA leave to care for a spouse, son, daughter, parent, or next of kin with a serious injury or illness incurred during military duty. An employee, under the new regulations, is now entitled to 26 weeks of "Military Caregiver Leave" in a single 12-month period.

Additionally, employees are permitted to take "Qualifying Exigency Leave" to handle non-medical issues. This permits an employee whose spouse, son, daughter, or parent, who is on active duty or on call to active duty, to take up to 12 weeks of leave in the following situations:

  • 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 agreed to between the employee and employer.

The new regulations retain the requirement that an employee is eligible to take FMLA leave if that employee has worked at least 12 months and 1,250 hours. The new regulations, however, provide that if an employee has worked less than 12 months during the current period of employment, the employee may be eligible for leave if, during the previous seven years, the employee worked a total of 12 months.

The new regulations also re-defined the definition of a "serious health condition." Now, to determine whether a condition causes an "incapacity" for purposes of FMLA leave, the "incapacity" is measured by the duration of the incapacity itself (more than three full calendar days); in-person treatment by a health care provider at least once within seven days of the first onset of the incapacity; and requires either a regimen of continuing treatment initiated by the health care provider during the first treatment or a second in-person visit for treatment within 30 days of the onset of the incapacity.

Employers also have heightened duties under the new regulations. Every employer must provide four types of notices: a "General Notice;" an "Eligibility Notice;" a "Rights and Responsibilities Notice;" and a "Designation Notice." The failure of an employer to provide these required notices may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights, which might provide the employee damages in the form of compensation and benefits lost and for actual monetary losses sustained, in addition to reinstatement.

Like employers, employees must provide notice to their employers regarding FMLA leave. Employees must provide 30 days advance notice in the case of foreseeable leave. If 30 days is not possible or if the leave is unforeseeable, then notice must be given "as soon as practicable." Failure to provide timely notice permits the employer to delay or deny FMLA protected leave.

Employees can provide notice verbally. Employers may require employees to comply with the employer's usual and customary notice and procedural requirements absent any unusual circumstances and provided that no written notice may be required in emergency situations or for unforeseeable leave. Employees must provide sufficient information for the employer reasonably to determine whether the FMLA may apply to the leave request.

The new regulations provide clarifications on the required medical certifications. For Military Caregiver Leave, employers may require information from the health care provider and from the employee and/or covered service member to support military caregiver leave. For Qualifying Exigency Leave, employers may require certification that the covered military member is a member of the National Guard or Reserves who is on active duty or called to active duty status. Employers may also require a statement from the employee about the nature and details of the specific exigency, the amount of leave needed, and the employee's relationship to the military member.

Employees must submit complete and sufficient medical certification for a serious health condition within 15 days. If it is timely submitted but incomplete, the employer must provide the employee seven days to cure the deficiencies and a list of what information is needed.

Once a complete certification is received, the employer may directly contact the employee's health care provider to authenticate it or for clarification of any vague or unresponsive information. Only the employee's immediate supervisor is prohibited from having contact with the employee's health care provider. 

Employers may require recertification every six months but only in connection with an absence that has occurred for that medical condition or if an employee seeks an extension of leave.

inally, employers may require the health care provider to assess whether the employee has the ability to perform the essential functions of the job. This fitness-for-duty certification must be based on a list or job description of essential job duties provided by the employer.

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About the Author

Jason M. Nutzman is an Associate in the Labor & Employment Group of Smith Moore Leatherwood LLP, in its Greenville, South Carolina office. Mr. Nutzman is admitted to practice in South Carolina and West Virginia. He is an active member of the South Carolina Hospitality Association, the American Bar Association, the Section of Labor and Employment Law of the American Bar Association, and the Young Lawyers Division

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