New regulations modify existing rules

If you have owned a business at some point in the last two decades, you have probably heard plenty about the Family and Medical Leave Act of 1993 (FMLA). But you may not be aware of recent regulatory changes to this important federal legislation affecting both employers and employees. The new rules are effective as of January 16, 2009.

Background: Under the FMLA, an employee is allowed to take up to 12 weeks of unpaid leave from his or her job for the birth or adoption of a child, for reasons relating to a personal medical condition or to care for another family member. The employee can keep benefits during the leave period, but he or she must continue to pay the required employee portion for those benefits. In addition, the employee has the right to return to the same or equivalent position, pay and benefits at the end of the leave.

The new regulations include several significant changes and clarifications of these rules. The following is a brief summary of the key points.

Military personnel: An employee with a family member who is on active military duty can now take up to

26 weeks of unpaid FMLA leave in each 12-month period to care for the military family member. The new regulations also define qualifying events that count as "military duty." Similarly, families of National Guard and Reserve members are allowed to take up to 12 weeks of job-protected leave per year to manage their affairs.

Serious conditions: The new regulations refine the definition of a "serious health condition" for FMLA purposes. It now requires two visits to a health care provider within 30 days of the period of incapacity (the first visit must occur within seven days of incapacity). Visits must be made in person.

Direct contacts: An employer may directly contact the employee's physician or other health care provider regarding health details on the employee's FMLA certification form. Note: The employee's "direct supervisor" is prohibited from making such inquiries. Also, the employer cannot request information beyond what is required by the certification form.

Employer notice obligations: Besides posting a notice about FMLA procedures in a prominent place at work (e.g., company bulletin board), an employer must provide the same notice in its employee manual or distribute a copy of the FMLA policy to its new hires. Employers now have five business days (increased from just two days) to send out FMLA eligibility and designation notices to employees.

Employee notice obligations: Prior to the new regulations, an employee could give notice of the need for an FMLA leave for up to two business days after being out on the leave, even if he or she could have provided notice earlier. But the new rules require employees to follow the employer's general call-in procedures unless unusual circumstances exist.

Note that the individual states may also impose rules relating to employee family and medical leaves. For example, a new law in New Jersey taking effect on July 1, 2009, entitles most employees in the state to take up to six weeks of paid family leave.

It may be necessary to obtain additional guidance concerning application of these new rules. Consult with a professional adviser.