Recent Updates to the Family Medical Leave Act By David A. Kovass The Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, requires employers to grant eligible employees a total of up to 12 workweeks of unpaid leave during any 12-month period for the birth/care of a newborn child, the adoption or foster care of a child, the care for an immediate family member with a serious health condition, or the employee’s own serious health condition. The U.S. Department of Labor recently issued new FMLA regulations that went into effect on January 16, 2009. These new regulations revised the existing FMLA regulations and also implemented new active duty and military caregiver leave requirements that were enacted under the National Defense Authorization Act in 2008. Since the revisions are too numerous to mention here, the following is a brief summary of key changes and new regulations. Revisions to Existing Regulations. Currently, employers may require a request for leave to be supported by a certification issued by a health care provider verifying information relating to the reason for the leave. Employers may now also contact the employee’s health care provider directly, but only for clarification and authentication of the medical certification provided by the employee. Employers may not request any additional information beyond that which is included in the certification form. Employers may also require a fitness-for-duty certification upon an employee’s return to work which addresses their ability to perform essential job functions. However, if the employer has such a requirement, the employer must provide the employee with a list of those essential functions, and specify that the fitness-for-duty certification must address the employee’s ability to perform those essential functions. Employees are also currently entitled to job restoration during their period of FMLA leave. The new regulations, however, stipulate that time spent in “light duty” does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period. Some other revisions which are too lengthy to mention here include, but are not limited to, new notice requirements for both employees and employers, modifications to the tests of incapacity and treatment, and intermittent leave. New Regulations Applicable to Military. Perhaps the biggest change to the FMLA is the expansion of its coverage to allow employees to take up to 26 workweeks of leave in a 12-month period to care for a covered service member with a serious injury or illness incurred in the line of duty on active duty. The law also allows employees with family members in the National Guard and personnel in the Reserve on active duty to take FMLA job-protected leave to manage their affairs under “qualifying exigencies,” which include: short-term deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post deployment activities; and additional activities where the employer and the employee agree to the leave. For more information, please contact Attorney David Kovass at dkovass@fandrlaw.com.
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