Family and Medical Leave Act 2008 Rule Changes.

posted by Neil Klingshirn  |  Jul 9, 2009 2:42 PM [EST]  |  applies to Ohio

The Department of Labor issued final changes to its Family and Medical Leave Act (FMLA) rules, which took effect on January 16, 2009.  These changes include the new leave related to military service members required by the National Defense Appropriates Act of 2008, as well as numerous clarifications required to conform the regulations to court precedent or otherwise alleviate perceived confusion with the prior regulations. 

The final rules also reorganize the prior regulations, in some cases extensively. Citations to the prior rules therefore may no longer be accurate.

No joint employer status for most Professional Employer Organizations (“PEOs”).

PEOs that contract with clients merely to perform administrative functions are not joint employers with their clients; however, where  the PEO has the right to hire, fire, assign, or direct and control the employees, or benefits from the work they perform, such a PEO would be a joint employer. 29 CFR 825.106.

Revised definition of “continuing treatment”

Continuing treatment now includes a health condition that involves either (a) one visit  to a health care provider plus a regimen of continuing treatment, such as a course of a prescription medication, or (b) two visits to a health care provider within 30 days of each other, unless "extenuating circumstances" exist.

The Rules clarify “treatment by a health care provider” as an in-person visit to a health care provider. In addition, the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

The term “extenuating circumstances” means circumstances beyond the employee's control that prevent the follow-up visit from occurring as planned by the health care provider. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period. 29 CFR 825.115

FMLA Eligibility.

To be eligible for FMLA, an employee must have been employed by the  employer for at least 12 months and have at least 1,250 hours of  service in the 12-month period preceding the leave. The new regulations state that the 12 months of employment need not be consecutive, but employment prior  to a continuous break in service of seven years or more need not be  counted, unless the break in service resulted from an employee's fulfillment of National Guard or Reserve  military service obligations or where a written agreement,  including a collective bargaining agreement, shows the  employer's intention to rehire the employee after the break in service.  In addition, an employer may consider employment prior to a break in service of more than seven years, provided that it does so uniformly with respect to all employees  with similar breaks.

As for the 1,250 hours required during the year preceding the leave, the new rule states that  an employer must credit an employee returning from his or her National  Guard or Reserve obligation with the hours of service that would have  been performed but for the military service.  The employer must also count the period of the  military service toward the 12-month requirement.

The final rule also eliminated the deeming of an employee as eligible for FMLA leave where the employer failed to provide certain statutory notices in light of Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). 29 CFR 825.110

Determining Whether 50 Employees are Employed within 50 Miles

The final rules revised the location of a jointly employed employee’s worksite.  Now, for purposes of determining an employee's  eligibility, the worksite of a jointly employed employee is the primary  employer's office from which the employee is assigned or reports “unless the employee has physically worked for at least one year at a  facility of a secondary employer, in which case the employee's worksite  is that location." 29 CFR 825.111

Leave for both Spouses Working for the Same Employer.

The final rules state that both spouses who work for the same employer may take their full 12 weeks of FMLA leave. By comparison, the prior and new rules allow only a total of 12 weeks for both spouses working for the same employer for the birth or adoption or foster care of a child. 29 CFR 825.119 and 825.121.

Definition of a “Health Care Provider.”

The final rule modifies the definition of “health care provider” to include physician assistants (“PAs”). The proposal added PAs to the list of recognized health care providers and deleted the requirement that they operate “without supervision by a doctor or other health care provider.” 29 CFR 825.125; See also 825.115 (Continuing treatment) and 825.800 (Definitions).

Leave for Military related Exigencies of Military Family Members

The final rules address the new qualifying reason for taking FMLA enacted in National Defense Authorization Act for FY 2008 (“NDAA”), which expanded the FMLA to allow eligible employees of covered employers to take FMLA-qualifying leave because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces (an “active military family member”). 29 U.S.C. 2612.  The NDAA also provided that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. 

Qualifying exigencies for which an employee may take FMLA leave to assist an active military family member include the following:

Short-notice deployment

Any issue that arises from a covered military member’s notification of an impending call to active duty seven or less calendar days prior to the date of deployment.  Leave taken for this purpose can be used for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty in support of a contingency operation;

Military events and related activities.

Attendance at any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member and family support or assistance programs sponsored or promoted by the military or the American Red Cross.

Childcare and school activities.

Arranging for alternative childcare when the active duty or call to duty requires a change in childcare arrangement for a child (broadly defined) of a covered military member, providing for childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to duty status of a covered military family member, enrolling in or transfering a child of a covered military family member to a new school or day care facility or attending meetings with staff at a school or a daycare facility of a child of a covered military family member

Financial and legal arrangements.

Making or updating financial or legal arrangements to address the covered military family member's absence while on active duty or call to active duty status and acting as the covered military family member's representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered military member's active duty status.


Attending counseling provided for the covered military family member or his or her, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member;

Rest and recuperation.

Spending time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.  Eligible employees may take up to five days of leave for each instance of rest and recuperation.

Post-deployment activities.

Attending arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status and for addressing issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Additional activities.

Addressing other events that arise out of the covered military family member's active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

Military Caregiver Leave

The final rules adopts a new section to address explains the military caregiver leave provisions, including an employee's entitlement to military caregiver leave and the specific circumstances under which military caregiver leave may be taken. 29 CFR 825.127. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember is entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember. 25 CFR 825.127

Amount of FMLA Leave

The final rules clarify how to count holidays in cases where an employee takes leave in increments of less than a full the final rule) that, if an employee needs less than a full week of FMLA leave, and a holiday falls within that partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee's FMLA leave entitlement if the employee would not otherwise have been required to report for work on that day. 29 CFR Sec.  825.200(h)

Scheduling of Intermittent or Reduced Leave Schedule.

Previously, the FMLA regulations required an employee who took intermittent or reduced schedule leave to “attempt to schedule” their leave so as not to disrupt the employer’s operations. The new, final regulations heighten this obligation, requiring employees to make a “reasonable effort” to schedule leave and not just an attempt.  29 CFR 825.203.

Counting increments of FMLA leave for Intermittent or Reduced Leave Schedule.

The final regulation state that an employer must account for the intermittent or reduced schedule leave under FMLA “using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour.” Previously, the rule tied the minimum increment of FMLA leave to the smallest increment used by the employer’s payroll system. However, employers may now also account for FMLA leave in smaller increments than that used for tracking other types of leave. 

The final regulations now state that if an employee who is using intermittent leave or working a reduced schedule cannot begin work mid-shift because due to a physical impossibility, the entire period of time until the employee can begin the shift is protected. Physical impossibilities may arise for a flight attendant, train conductor, bus driver, clean room technician or other person whose work site is not longer physically present or inaccessible. The protected leave lasts until the employee can access the worksite.

Substitution of paid leave for FMLA leave.

The final rules clarify that “substitution” of paid leave for FMLA purposes means that the unpaid FMLA leave and the paid leave provided by an employer run concurrently. The Department of Labor also revised this section to allow employers to apply their normal policies for taking paid leave when an employee substitutes paid leave for unpaid FMLA leave regardless of the type of paid leave substituted.  This revision changes Section 825.207, which prohibited employers from imposing any limits on the substitution of paid vacation or personal leave, but not paid sick or medical leave. 

Now, employees who seek to substitute accrued paid leave of any kind for unpaid FMLA leave must comply with the terms and conditions of the employer's normal leave policy. The final rule also states that employers must notify employees of any additional requirements for the use of paid leave (e.g., paid leave only being available in full day increments or upon completion of a specific leave request form), and stated that if employees do not or cannot meet those requirements, they remain entitled to unpaid FMLA leave as guaranteed by the statute. The final regulations also state that employers cannot discriminate between FMLA leave users and others in the provision of paid leave. 29 CFR 825.207.

Employee Failure to Make Health Premium Payments.

Section 825.212 explains that an employer may terminate an employee's health insurance coverage while the employee is on FMLA leave if the employee fails to pay the employee's share of the premiums, the grace period has expired, and the employer provides sufficient and timely notice to the employee. The final regulations state that, if an employer allows an employee's health insurance to lapse due to the employee's failure to pay his or her share of the premium as set forth in the regulations, the employer still has a duty to reinstate the employee's health insurance when the employee returns to work, and the employer may be liable for harm suffered by the employee as a result of the violation if it fails to do so. This proposal clarifies the Department of Labor’s existing enforcement position.

Perfect attendance and other achievement based bonuses.

The final rules now allow an employer to disqualify an employee from a bonus or other payment based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, where the employee has not met the goal due to FMLA leave, unless the bonus or payment is otherwise paid to employees on an equivalent non-FMLA leave status. An employer may thus disqualify an employee from a bonus or other payment based on the achievement of a specified goal, such as hours worked, products sold, or perfect attendance, where the employee has not met the goal due to FMLA leave

Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights.

The final rules add new language setting forth the remedies for interfering with an employee's rights under the FMLA. They specifically reference retaliation to clarify that the prohibition against interference includes a prohibition against retaliation as well as a prohibition against discrimination. The regulations also now state that the statutory prohibition against interference applies to employees or prospective employees who have exercised or attempted to exercise FMLA rights.

The final regulations clarify that the waiver prohibition applies only to prospective FMLA rights and does not prevent employees from settling past FMLA claims without Department or court approval.

Finally, the regulations clarifies that the waiver prohibition does not prevent an employee's voluntary and uncoerced acceptance of a light duty assignment while recovering from a serious health condition and the employee's acceptance of the light duty assignment does not constitute a waiver of the employee's prospective rights, including the right to be restored to the same position the employee held when the FMLA leave commenced or an equivalent position. Thus, an employee who voluntarily returns to a light duty position retains the right to job restoration to the same or equivalent position until the end of the 12-month period that the employer uses to calculate FMLA leave. 29 CFR Section 825.220 . 


A.    Employer Notices

The final regulations require four separate types of Employer notices:

  1. “General notice,” which means the poster listing employees’ FMLA rights, plus a new a requirement to notify employees separately of their FMLA rights in writing in an employee handbook or otherwise “upon hiring.” 29 CFR § 825.300(a).

  2. “Eligibility notice” when an employee requests leave, or when the employer identifies a potential FMLA-qualifying leave.  The employer must notify the employee of his or her FMLA eligibility status within 5 business days. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible. 29 CFR § 825.300(b). Eligibility notice may be provided orally or in writing.

  3. “Designation notice” in writing within five days after obtaining sufficient information to know whether a given absence is FMLA-qualifying or not. If leave is granted, the designation notice must:
    1. include any “fitness-for-duty” certification required by the employer and
    2. specifically inform the employee of the amount of leave – “hours, days or weeks” – that will be deducted as a result of the leave
  4. “Rights and responsibilities notice” to employees who take leave, in writing, detailing the employer’s expectations and any consequences of the employee’s failure to meet these expectations under the FMLA. This notice must be provided with the eligibility notice and must include:
    1. an explanation that if FMLA leave is granted it will be deducted from the employee’s 12-week allowance,
    2. requirements for employees to submit medical certifications and the consequences for failing to do so,
    3. employer requirements for using or substituting other paid leave for FLMA leave
    4. employee obligations for maintaining health benefits during FMLA leave, such as paying premiums,
    5. key employee status, if applicable,
    6. employee rights, including health insurance benefits and job restoration and
    7. the employee’s potential liability for unpaid health insurance premiums if the employee fails to return to work following leave. 29 CFR § 825.300(c).

B.  Employee Notice

The final regulations state that, in cases of unforeseeable leaves, the time “practicable” for an employee to notify the employer of the need for leave is “either the same day or the next business day.” An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Employers may require employees seeking FMLA leave to call a “designated number or a specific individual to request leave,” which changes the old rule that prohibited an employer from delaying or denying FMLA leave if an employee failed to follow the employer's procedures.29 CFR § 825.302 and .303.

The final regulations limit the rule that an employee need not mention the FMLA by name to circumstances “[w]hen an employee seeks leave for the first time for an FMLA qualifying reason.” Once the employer grants FMLA leave for an employee’s health condition, however, the employee must “specifically reference either the qualifying reason or the need for FMLA leave” in order to preserve his or her rights under the Act. Simply calling in “sick” may not be enough to trigger the affirmative duty for the employer to inquire further about whether the absence might be FMLA-qualifying. 29 CFR § 825.303.

Medical Certification

The final regulations include new, approved medical certification forms, including separate forms for the serious health conditions of employees and those of family members. The final regulations allow health care providers to include medical facts about diagnoses, symptoms, hospitalization, doctors’ visits, prescription medication, referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.

Employer Contacts with Health Care Providers

The final regulations now allow employers to contact an employee's physician directly “[i]f an employee’s serious health condition may also be a disability within the meaning of the Americans with Disabilities Act” so long as the ADA regulations are observed. 29 CFR § 825.306.

The final regulations also permit an employer to make direct contact with the employee’s physician to seek “clarification and authentication” of medical certifications. Employers may initiate such contacts only through “a health care provider, a human resources professional, a leave administrator, or a management official.” However, “[u]nder no circumstances … may the employee’s direct supervisor contact the employee’s health care provider.”  29 CFR § 825.307(a).

While the employee is not required to permit his or her doctor to communicate with the employer, the employer may deny the designation of FMLA leave for failure to consent. 29 CFR § 825.307(a).


Under the final regulations, if the medical certification indicates that the underlying condition will last more than 30 days, the employer may not request recertification until that minimum duration has passed. Employers may, however, always require recertification every 6 months in connection with an absence. 29 CFR § 825.308.

Fitness-for-Duty Certification

The final regulations permit an employer to require an employee to obtain a certification from his or her health care provider stating that the employee is fit to resume work following FMLA leave. The employer may provide the employee with a list of the employee’s essential job duties together with the designation notice, described above, in which the employer originally advises the employee of the necessity for a fitness-for-duty certification. If the employer provides such a list of essential functions, it may require the employee’s health care provider to certify that the employee can perform them.  When completing a fitness-for-duty certification, the health care provider must assess the employee’s ability to return to work against the identified essential functions. 29 CFR § 825.312(b).

The general restriction on obtaining a new fitness-for-duty certification following each intermittent leave event remains the same.  However, an employer can require  a certification of fitness to return to duty for intermittent absences, up to once every 30 days, if “reasonable safety concerns” exist regarding the employee’s ability to perform his or her duties. 29 CFR § 825.312(f).

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posted by Neil Klingshirn  |  Jul 9, 2009 2:42 PM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
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Phone: 216-382-2500