Frequently Asked Questions about
the new Family and Medical Leave Act

On November 17, 2008, the first revision to the Family and Medical Leave Act regulations since enactment of the 1993 law was released by the Department of Labor. As expected, the new rules implement the new military leave law which provides job-protected leave rights to employees who care for covered service members with a serious injury or illness, or who face “qualifying exigencies” because a covered military member is on active duty or has been notified of an impending call or order to active duty.  The new rule also makes several changes to existing FMLA regulations, including new notice requirements (including a new FMLA poster) and medical certifications.

Many of our customers have contacted us with questions about how the FMLA changes will impact your leave policies and current labor law postings.

Q: When do the new FMLA regulations take effect?

A:  The final rule took effect on January 16, 2009.

Q: Does FMLA apply to my business?

A: The FMLA applies to all employers with 50 or more employees on the payroll (including part-timers and employees on leave).  The FMLA also applies to public agencies, including state, local and federal employers, and local education agencies — regardless of employee size.    

Q: Will the new rules require me to post a new federal Family and Medical Leave poster?

A: Yes. You can fulfill this requirement with the ComplyRight Federal Poster. This all-in-one poster includes every mandatory federal posting – including the latest FMLA regulations.

Q: When will the new federal poster be released?

A: It is still uncertain as to when the new poster will be released. But we are expecting the new posting to be available well in advance of the January 16, 2009 deadline. You can preorder the poster now, and we will ship it to you as soon as it is available.

Q: What are the new FMLA changes?

A: The new FMLA rule implements the requirements to expand FMLA protections for family members caring for a covered service members with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

The new military leave law also allows families of National Guard and Reserve personnel on active duty to take 12 weeks of FMLA job-protected leave to manage their affairs — “qualifying exigencies.” The new rule defines “qualifying exigencies” as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

Other significant changes brought about by the final rule include:

1.       Serious Health Condition.  While the rule retains the six individual definitions of “serious health condition,” it adds guidance on some regulatory matters.  First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines “periodic visits to a health care provider” for chronic serious health conditions as at least two visits to a health care provider per year.

2.       Medical Certification. Employers have five business days (up from two days) in which to request medical certification after receiving notice of an employee’s need for FMLA leave.  Employees are required to provide medical certification within 15 days after leave is requested in all cases of FMLA leave, including foreseeable leave. The new rule provides two sample medical certification forms employers may use to verify an employee’s FMLA leave request.

3.       Employer Notice Requirements. Notice requirements have been consolidated into one comprehensive one-stop section in the new rule.  Employers are required to provide employees with four different types of notices: general notices, eligibility notices, rights and responsibilities notices, and designation notices.

Q: Will my state FMLA poster be affected by the new law?

A: Typically, state FMLA posters only address state FMLA laws. As such, most state FMLA postings will not be affected by the new federal law.