Revised Department of Labor regulations interpreting the Family and Medical Leave Act (FMLA) became effective January 16, 2009. The regulations make many significant changes to employers’ responsibilities and employees’ rights. They will require employers to amend their FMLA policies, revise FMLA forms, and modify FMLA procedures. Employers must take several steps immediately.

Employers must:

  • Amend FMLA policies to allow leaves for employees who have family members on active duty in the military service. Leaves must be granted if the military service member is injured or becomes ill in the line of duty. Employees may take leave to prepare a family member for active duty or if they have certain issues that arise from having a family member on active duty. The “issues” for which leave must be granted are set out in the regulations and must be stated in the amended policy.
  • Amend FMLA policies to redefine hours of service eligibility requirements and what constitutes a “serious health condition” entitling an employee to FMLA leave. FMLA policies must also clarify certain intermittent leave rules, rules as to when leave will be paid and unpaid, and eligibility of employees on leave to bonuses. Medical certification and fitness for duty procedures must also be modified.
  • Modify all FMLA notices and certification forms.
  • Adopt new FMLA processing procedures for leave requests and train management and HR personnel to implement the new procedures.

Please call us so we can work together to implement these changes.

Below the new regulations are described in more detail.



Since a January 2008 amendment to the FMLA, eligible employees have been entitled to 26 weeks of leave (not the 12 weeks generally allowed under the FMLA) during a single 12-month period to care for a spouse, son, daughter, parent, or next of kin in the military service who suffers from a serious injury or illness in the line of duty. (Note that leave is not mandated by the FMLA to care for a “next of kin” with a serious health condition who is not in the military.) FMLA leave to care for an ill or injured military service member is applied on a per covered-service member, per injury basis. In other words, if an eligible employee does not take all of the 26 workweeks of leave entitlement to care for a covered service member during this “single 12-month period,” the remaining part of the 26 workweeks of leave entitlement to care for this covered service member is forfeited.

Employees may also take the normal 12 weeks of leave per 12-month period to prepare a family member for active duty or if employees have to deal with issues that come up because a family member is on active duty. These responsibilities are termed “qualifying exigencies” and include issues arising out of a short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any additional activities that arise out of the active duty or the call to active duty that the employer and the employee agree are qualifying exigencies. If an eligible employee takes both leave to care for a family member in the military service and leave to deal with qualifying exigencies, the employee is only entitled to 26 weeks of leave per 12-month period in total and, as stated, the amount of leave taken to deal with qualifying exigencies cannot be more than 12 weeks.



The new regulations clarify what written notices employers must provide to employees, the required content of these notices, and when particular notices must be given. Employers are well-advised to work with counsel to prepare and properly distribute these documents. Three notices are required:

  • General Notice. Every employer covered by the FMLA is required to post on its premises a notice that explains the FMLA’s provisions and provides information concerning procedures for filing complaints of violations. If an FMLA-covered employer has any eligible employees, the employer must also include the notice in the employee handbook or distribute a copy to each employee upon hiring. The new regulations allow electronic posting and distribution of the FMLA general notice.
  • Notice of Eligibility and Rights and Responsibilities. When an employer learns that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days. This is a change from the previous two-day requirement. The notice must include specific information, including whether the employer requires the employee to provide medical certification, the employer’s policy concerning the substitution of paid leave for unpaid FMLA leave, any requirements to pay medical insurance premiums, and, if an employee is not eligible for FMLA leave, at least one reason why the employee is not eligible.
  • Designation Notice. Employers are also required to provide another notice, a designation notice, that informs the employee whether the leave will be deemed FMLA leave. The employer must provide this notice to the employee within five business days after the employer is able to determine whether the leave being requested is for an FMLA-qualifying reason (e.g., after the employer receives and reviews a completed medical certification form).



Employers may require that employees provide proof in the form of certification to establish they are eligible for FMLA leave. New certification forms have been issued by the Labor Department for each of the four types of FMLA leave available, for an employee’s own health condition, to care for a family member with a serious health condition, to care for a family member ill or injured in the line of duty, and to take care of issues arising because a family member has been called to active duty.

The new regulations also allow an employer to contact an employee’s medical provider under certain limited circumstances in order to clarify and authenticate the medical certification. No contact should be made without seeking advice of counsel first and no contact with a medical provider may ever be made by the employee’s direct superior.

Also, an employer may require that the employee obtain a fitness for duty certification after taking an FMLA leave, but only if the employee has been advised of this requirement in the designation of leave notice and this policy is uniformly applied.



The new regulations make minor changes to employee eligibility standards, clarify what constitutes a “serious health condition,” and explain how employers must account for intermittent leaves. They also clarify that to be able to substitute paid leave for FMLA leave, an employee must comply with the employer’s time off policy even if the policy requirements are more stringent than the FMLA notice requirements. The regulations clarify as well that an employee on leave may be disqualified from bonuses given for achieving goals the employee does not achieve because of an FMLA-related absence.

This summary does not address all of the changes required by these regulations. As stated, employers are strongly advised to review their policies and procedures with counsel immediately and make changes consistent with the new regulations.



If you have any questions, please contact a member of our Employment Law Practice.

Return to Resources