Family Medical Leave: Recent changes by DOL

From the Law Office of Beeson, Tayer & Bodine

In November of 2008, the Department of Labor published new regulations that modified certain aspects of the Family Medical Leave Act (FMLA). These new regulations took effect on January 16, 2009, and made some significant changes to current FMLA practices. Among other things, the new regulations provide for greater leave to care for family members on active-duty in the armed services and increased the notice requirements for employees seeking FMLA leave. However, the California Family Rights Act (CFRA) was unaffected by these changes, and CFRA rights still govern to the extent they are more generous to employees than the FMLA under the new regulations.

I. Military family leave: New entitlements and definitions

The new regulations provide employees with family members on active- duty service with two new forms of FMLA leave. Under the first, family members of covered service members will be eligible for up to 26 weeks of leave in a single 12-month period to care for a service member with a serious illness or injury incurred in the line of duty. Under the second, employees with family members on active-duty in the National Guard and Reserves will be eligible for 12 weeks of FMLA leave to use for “any qualifying exigency” arising out the active-duty service or the impending call to activeduty service. CFRA does not cover this second category of “qualified exigency” leave, and therefore “qualified exigency” leave taken under the FMLA will not count against an employee’s CFRA leave entitlement.

To implement these changes, the new regulations also define several key terms employees should be aware of. For example, “qualifying exigency” is defined to include a variety of service-related absences, including short-notice deployments, childcare and school activities, post-deployment activities, and rest and recuperation for the service member. Other specific categories are described in the rules, and the employer and employee are free to define other “qualifying exigencies” for the purpose of utilizing this second form of leave.

Also, the definition for “family member” of a covered service member is broader than that used in other FMLA contexts, including not only spouses, parents, and children, but “next of kin” as well. This expanded definition, however, applies only to the first category of military family leave, and those seeking “qualified exigency” leave must still be either a spouse, parent, or child of the covered service member.

II. Notice requirements: Increasing the onus on employees

In response to a variety of employer complaints about the disruptive effects of FMLA leave on the employer’s business, the DOL has also enacted more stringent notice requirements for employees seeking FMLA leave.

Employees are now required to provide 30 days advance notice of foreseeable leave or explain why it is not practicable to do so. For unforeseeable leave, employees must comply with the employer’s usual and customary absence-notification procedures (i.e., if your employer ordinarily requires you to call and notify them on the date of an absence, you must also do so when taking FMLA leave under the new regulations). Failure to comply with these notice requirements will result in a denial of FMLA “job-protected” leave without a showing of “unusual circumstances.”

III. Conclusion

These new regulations were passed in response to 15 years of experience with the FMLA and the identification of specific problems that have arisen under its implementation. To better protect employees with family members devastated by the Iraq and Afghanistan wars, the FMLA has been expanded to include special provisions for these employees. However, employees are now required to provide more timely notice of their intent to utilize their FMLA entitlements.

These are just a few of the more significant changes made by the new regulations, including changes in the certification process for employers and health care providers. To learn more about these or other recent changes to the FMLA, employees may visit http://www.dol.gov/ esa/whd/fmla/finalrule. htm to see the complete set of new regulations.

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