Key Changes

Annotated Highlights from the New FMLA Regulations, provided by Office of the General Counsel can found here.

Employer Notice Requirement: When the employee requests FML or the employer learns that her leave may be for a FML-qualifying purpose, the employer must let the employee know within five days (absent extenuating circumstances) if he/she is eligible. If he/she is not eligible, the notice must explain why, including giving the number of hours worked and the months employed. This notice need be given only once, so long as the employee's eligibility status does not change during the leave year. But, if there is a change, then another eligibility notice must be given. Employers must notify employees of whether or not leave is designated as FMLA leave within five business days, absent extenuating circumstances.

Employee Notice Requirements: Employers may require employees to follow their usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances, so long as the employer’s usual reporting procedure is not more stringent than the FMLA allows.

Medical Certification: Employers (e.g., HR professionals, leave administrators, management officials) may now contact the employee’s health care provider directly and without the employee’s consent; however, the employee’s direct supervisor is prohibited from making contact. Contact with the health care provided may be made only to authenticate or clarify the medical certification, but not to ask for new information.

Definition of “Serious Health Condition”: The definition “continuing treatment by a health care provider” has been clarified to require that the two visits must occur within 30 days, and the first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances.

Definition of “Continuing Treatment by a Health Care Provider”: Has been clarified to require that the visit must occur within seven days of the first day of incapacity. (Please note: implementation of this definition at the University is still under review and not yet determined.)

Definition of “Periodic Treatment” of a Chronic Serious Health Condition: Defined as at least twice a year. (Please note: implementation of this definition at the University is still under review and not yet determined.)

Qualifying Exigency: The final rule defines “qualifying exigencies” as: short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and additional activities. This leave is for employees who have a spouse, parent, son or daughter (a “covered military member") who is on active duty or (federal) call to active duty in support of a contingency operation when they are members of the National Guard or the Reserves or are a retired member of the regular armed services. A covered military member does not include a member of the regular armed forces.

Intermittent or Reduced Schedule Leave: The final regulations make clear that employers must account for intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.

Substitution of Paid Leave: Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave.

Light Duty: The time an employee voluntarily works in a light-duty assignment does not count as FMLA leave.