CLIENT ALERT / Updated FMLA Regulations Print

On Friday, January 16, 2009, new Rules promulgated by the Department of Labor construing the Family and Medical Leave Act of 1993 became effective.  Although ambiguity remains in interpreting some aspects of the Family and Medical Leave Act, the new Rules do provide more clarity regarding both employee and employer responsibilities under the Family and Medical Leave Act and under the old regulations.  For additional information about these new regulations and to download the new FMLA Poster and required forms, please visit

Military Leave

One substantive and significant change was brought about by the inclusion of new military family leave entitlements which are incorporated in the new FMLA regulations.  This includes up to 12 weeks for certain qualifying exigencies arising out of the fact that an employee’s spouse, child, or parent is a covered military member and has been called or is about to be called to active duty.  These exigencies include, among others, attend family support assistance programs, arranging alternative child care, attend meetings relating to staff and child care, and to make financial and legal arrangements.  In addition, up to 26 weeks of leave are provided to an employee if the employee is the spouse, child, parent, or next of kin of a service member with a serious injury or illness sustained on active duty.

Notice Requirements

The new Regulations impose strict obligations for employers in posting notices.  Under certain circumstances when all employees and applicants have access to computers, the notice may be posted via the Internet.  Employers who have employee handbooks must also include FMLA information in those handbooks.  Additionally, the regulations make clear that employers have obligations to not only train employees with respect to their rights and obligations under the Family and Medical Leave Act, but managers are expected to be able to respond appropriately to questions posed by employees regarding their FMLA rights.  The notice obligations of the employer are generally set out in two forms the Department of Labor has generated with respect to an employee’s request for a covered FMLA leave and/or providing the employer with sufficient information so that the employer knows that the leave requested by the employee is possibly covered under the FMLA.

Form WH-381, entitled “Notice of Eligibility and Rights and Responsibilities,” is a form that must be provided to an employee within five business days of the employee requesting leave under the Family and Medical Leave Act.  (The employer can develop their own form but the regulations make it clear that this form must meet all of the regulatory requirements.)  Form WH-381 requires the employer to inform the employee whether the employee is eligible (eligibility involves employment for 12 months and working at least 1,250 hours within the 12 months preceding the leave) and also obligates the employer to indicate to the employee if they are not eligible, and there is a checklist on the form regarding why an employee might not be eligible.  In addition, Form WH381 provides information to the employee with respect to the employee’s rights and responsibilities, including notifying the employee whether a medical certification to request a leave and other information is required depending on the context of the leave.  If the employer requests a medication certification, it must specifically indicate so and the form notifies the employee that they must return the certification to the employer within 15 calendar days from the receipt of the “Notice of Eligibility and Rights and Responsibilities.”  The regulations make clear that it is the employee’s responsibility to provide the employer with an appropriate medical certification.  If the employee provides a certification that is vague or not filled out appropriately, the employer must provide the employee with an additional seven calendar days to cure the problems.

The employer has a separate obligation to provide a separate notice to the employee within five days of the date that the employer receives sufficient information from the employee (obtained as a result of the previously identified notice (WH-381)) to provide the employee with what is called a “Designation Notice,” which is Form WH-382.  The Designation Notice provides the employee with notice that the leave has been approved as FMLA leave and/or notes additional information required.  Both notice forms mentioned above are in a “checklist” type format, and reviewing the forms will help employers more clearly understand the regulations.

While the Regulations make clear that it is the employee’s obligation to provide the employer with sufficient information so that the employer is on notice with respect to the need for an FMLA leave, the regulations also make clear that an employer’s failure to abide by these notice obligations can support an “interference” claim brought by the employee if the employee is harmed in any way.

The FMLA regulations also make clear that the employer can require that employees comply with other leave related policies and even other absence policies the employer has as long as employees requesting and/or participating in a Family and Medical Leave are treated the same as other employees on non-FMLA leave.  As an example, an employer can have a policy that when an employee requests a leave of any type, they must fill out a particular request form and/or direct employees to a particular person or a particular phone number when requesting leave, including Family and Medical Leave.  In addition, an employer can request that an employee comply with an otherwise non-discriminatory call-out policy so that employees are required to provide information to the employer sufficient for the employer to be on notice that a particular absence is “FMLA related.”  The regulations make clear that simply calling out “sick” will not obligate an employer to provide Family and Medical Leave or justify an absence as Family and Medical Leave, and the employer can implement disciplinary measures as a result of a deviation from the policy as long as all other non-FMLA leave employees are subject to the same discipline.

Medical Certification

The medical certification process has been revamped with a revised form for an employee’s serious health condition (Form WH-380-E) as well as a family member’s serious health condition (Form WH-380-F).  Again, it is the employee’s responsibility to make sure that these forms are complete.  Under the new regulations an employer does have the ability to communicate with the healthcare provider who generated the certificate without an authorization as long as the employer representative is 1) a high level manager (including Human Resources), 2) is not the employee’s supervisor, and 3) whose sole purpose in the communication is to “authenticate” the certification.  If an employer needs “clarification” because of ambiguities or questions with respect to the certification, the employer representative can communicate with the healthcare practitioner only with the authorization of the employee, and the new regulations allow the employer to do this versus the prior requirement that this be delegated to the employer’s healthcare practitioner.  However, the regulations make clear that if an employee provides a complete copy of the certification and there is no issue with respect to the authenticity of the certification, the employer cannot inquire further and must provide the employee with Family and Medical Leave leave.

The new regulations also clarify what can happen during second and third opinions.  The requirement remains that a second and third opinion healthcare provider be unaffiliated with the employer, but the Regulations now allow for the employee to sign a release so that this second or third opinion doctor can obtain all relevant medical information from the employee’s provider as long as the second or third opinion doctor thinks it is appropriate.

Practically speaking, the changes in the FMLA regulations warrant the following:

1.     New FMLA posters (which include the military leave mentioned above) should be conspicuously placed anywhere employees or applicants may be centrally located. 

2.     Management training with respect to Family and Medical Leave Act obligations ought to be provided to each supervisor.  Designated upper management individuals (HR people) should be trained with respect to disseminating information to employees with respect to their rights and obligations and responding to questions about FMLA rights and responsibilities.  In addition, leave policies should direct employees to communicate with these highly trained individuals with respect to requests for all leaves including FMLA leave.

3.     Family and Medical Leave Act rights and responsibilities (and related leave/call out policies) should be reviewed with new employees during orientation.  Much like sexual harassment, safety, etc., it will be important for employers to document the fact that employees have been apprised of their FMLA rights and other procedures related to FMLA (e.g., process for requesting leave, call out policies, etc.).

4.     Employers with a significant number of employees who do not speak English will be required to replicate poster and notice materials in the language of these non-English speaking employees.

5.     Employers should review their “usual and customary” leave of absence request procedures as well as call-out/absenteeism procedures, to make sure they are cross-referenced in any FMLA policy.

6.     Perhaps the most important policy is to have a “Concerns” policy within your FMLA policy (which should be discussed at orientation) whereby employees who believe that they have not received sufficient guidance from the employer and/or believe that their leaves have been inappropriately denied can communicate with the employer to resolve these issues. 

7.     Documentation regarding the Concerns process and any resolution should be kept as this will be subject to review during any Department of Labor audit.  This obviously requires that any individual employer representative involved in the “Concerns” procedure understand the employer’s rights and obligations as well as the employee’s rights and obligations.

8.     Employers should be aware that job protection rights of an employee don’t necessarily cease when the FMLA leave ends, as there may be obligations to hold the job open for additional periods as a reasonable accommodation under disability law and as long as it is not an undue burden to do so.

The new required poster and notice and medical certification documents are attached to the website previously mentioned.  The use of older notice and medical certification documents are probably unlawful given the change in the regulations, and the new notice documents should be used in lieu of any previously used Department of Labor forms.

If you have any questions about this or any legal matter, please don’t hesitate to contact the attorneys at Taylor, McCormack & Frame.


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