The U.S. Department of Labor’s long-awaited final revisions to the regulations implementing the federal Family and Medical Leave Act (“FMLA”) took effect on January 16, 2009.  The revised regulations address the military family leave entitlements created through the National Defense Authorization Act (“NDAA”) and clarify numerous issues that have arisen since the passage of the FMLA in 1993.  Some of the highlights of the revised regulations are discussed briefly below.

First, the revised regulations explain the impact of the NDAA.  As was noted above, under the NDAA, eligible employees may be entitled to military family leave in certain situations.  Specifically, the final rule provides that eligible employees may qualify for FMLA leave for any qualifying exigency arising out of the fact that a parent, spouse, or child 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.  A “qualifying exigency” includes, among other things, military events and related activities, childcare and school activities, and post-deployment activities.  It is important to note that this type of leave applies only to service in the Reserves and National Guard.

Eligible employees may also qualify for FMLA leave to care for a covered servicemember with a serious injury or illness incurred in the line of duty on active duty if the employee is the parent, spouse, child, or next of kin of the servicemember.  It is important to note that this type of leave applies to service in the regular Armed Forces, as well as the Reserves and National Guard.  In addition, this type of leave may extend for up to 26 weeks in a single 12-month period.

Second, the revised regulations make it clear that employees may voluntarily settle or release FMLA claims without court or Department of Labor approval.  Employees may not, however, prospectively waive FMLA rights.

Third, the revised regulations clarify the definition of a “serious health condition.”  Specifically, the final rule provides that if an employee is taking leave involving more than three consecutive, full calendar days of incapacity plus two visits to a health care provider, the two visits must occur within thirty days of the first day of incapacity (unless extenuating circumstances exist).  In addition, the initial visit must occur within 7 days of the first day of incapacity.  The rule also provides that if an employee is taking leave involving more than three consecutive, full calendar days of incapacity plus “a regimen of continuing treatment,” the initial visit to a health care provider must occur within 7 days of the first day of incapacity.  Finally, with respect to chronic serious health conditions, “periodic visits” to a health care provider is defined as at least two visits per year.

Fourth, the revised regulations clarify and consolidate various employer notice requirements.  The final rule also strengthens employer notice requirements so that employers will provide more comprehensive information to employees about their FMLA rights and obligations.

These are just some of the changes of which employers should be aware.  Other important changes relate to intermittent leave, the substitution of paid leave, the medical certification process, fitness-for-duty certifications, and perfect attendance awards.  In light of these changes, employers should update their FMLA policies, post a revised FMLA poster, utilize revised FMLA notice and certification forms, and possibly even revise their standard separation agreements.  Employers should review their FMLA policies, forms, and practices with their human resources staff and legal counsel.

Jessica L. Durbin is a partner with the law firm of Johnson, Killen & Seiler, P.A.  Ms. Durbin represents employers in labor and employment law matters.