The DOL Issues New FMLA Regulations


On November 17, 2008, the Department of Labor (“DOL”) issued new regulations implementing the Family and Medical Leave Act.  These regulations become effective on January 16, 2009.  As these new regulations modify the obligations imposed upon employers and alter the rights of employees, they certainly will affect the manner in which employers manage potential FMLA issues. 
For those employers that currently do not have an FMLA policy, now is the time to develop one.  Even for those employers that currently have an FMLA policy, it will be important to amend it to conform to the new regulations.  It is clear that an employer’s failure to comply with the requirements of the new regulations may expose the employer to significant liability.  Below are some of the more significant changes to the regulations:

  • Covered employers now must post a general FMLA notice, even if they do not have any employees eligible for FMLA leave.
  • Employers now must provide employees two types of notice when employees request FMLA leave: eligibility notice (either indicating that the employee is eligible for leave or explaining the reason the employee is not eligible) and designation notice (notifying the employee whether the leave will be designated and counted as FMLA leave as well as if paid leave will be required to be substituted for unpaid FMLA leave and if the employer will require a fitness-for-duty certification upon return from leave).
  • Each time the eligibility notice is provided, employers now must provide employees a notice of rights and responsibilities detailing the expectations and obligations of the employee and explaining the consequences of a failure to meet these obligations.
  • Eligible employees now are provided 12 weeks of unpaid leave for a qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
  • Eligible employees now may take unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.
  • Employers have additional time for requesting certification from a health care provider that the employee is suffering from a serious health condition.
  • Employers may demand more detailed information from the employee’s health care provider before returning the employee to work.
  • Employers may consider FMLA absences in determining bonuses and other incentive awards.
  • New forms have been implemented to assist employers in providing FMLA leave, including forms for employee eligibility and rights and responsibilities, designation of leave, certification of qualifying exigency for military family leave, and certification of serious injury or illness of covered servicemember for military family leave.
  • There now are separate medical certification forms for an employee’s serious health condition and for a family member’s serious health condition.
  • Employees now explicitly are permitted to settle past FMLA claims.

These topics represent only a fraction of the changes arising out of the new FMLA regulations.  For more information on the new FMLA regulations and how they may affect your operations, please contact one of the lawyers in the Labor Law and Employment Litigation Section of Freeman Mathis & Gary, LLP.
Additionally, to view the revised FMLA regulations and forms, please go to