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December 10, 2008

Final FMLA Regulations

Last month, the Department of Labor issued final regulations relating to the Family and Medical Leave Act.  Not only do these regulations clarify FMLA issues that have arisen since the law’s enactment in 1993, but they also address the two new forms of FMLA leave signed into law last January, specifically, relating to military families (see FMLA Brings Benefits to Military Families). These regulations become applicable January 16, 2009, and therefore, command immediate attention.

Military Family Leave

The law allows up to 12 weeks of FMLA leave per 12-month measuring period, for a “qualifying exigency”; and, up to 26 weeks of FMLA leave to caregivers of service members in a single 12-month period.

Exigency Leave

Eligible employees may take up to 12 weeks of FMLA leave while the employee’s spouse, son, daughter, or parent, is on, or called to, active duty for one or more of the following ‘qualifying exigencies’:

  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. Other activities arising out of the military member’s active duty, agreed to by the employer and employee.

Certification for Leave – Qualifying Exigency.  The first time an employee requests leave due to a qualifying exigency arising out of active duty, the employer may require the employee to provide a copy of the military orders, or similar documentation, that attests the need, and approximate dates, of the exigency leave. 

Certification for leave due to a qualifying exigency may be accomplished using the DOL’s Model Medical Certification of Qualifying Exigency for Military Family Leave (Form WH-384).

Caregiver Leave

Military caregiver leave is available to otherwise FMLA-qualified individuals who have a family member that incurs a serious health condition, or injury, while on active duty.  In order to care for the covered service member, an eligible employee must be the spouse, son, daughter, or parent, or next of kin of the service member. 

One 26-week allotment is available per serious illness or injury.  The single 12-month period is measured on the date the employee commences the caregiver leave, and ends 12 months thereafter, without regard to what the employer’s general FMLA 12-month measuring period is.

Certification for Leave to Care for Covered Service Member

  • Certificate from Health Care Provider. An employer may require an employee to obtain certification from an authorized health care provider to support the need for FMLA leave to care for a covered service member.  For these purposes, an authorized health care provider includes one designated by the US Department of Defense, the US Department of Veterans Affairs, or a TRICARE network or non-network authorized private health care provider.
  • Certification from Employee and/or Covered Service Member. In addition to the information requested from the health care provider, as above, an employer may require an employee to provide certification of the need for FMLA leave to care for a service member. 

Employers can use the DOL’s Form WH-385 (Medical Certification for Serious Injury or Illness of Covered Service member for Military Family Leave) for this purpose; or provide its own certification form.

Employer Notice Obligations

These regulations clarify the notice obligations of employers, and set out some new notice obligations.  The final FMLA regulations include the various new model forms in the text.  It is anticipated that these model notices will be made available on the DOL’s website shortly.  

  • General Notice.  FMLA covered employers must post a General Notice of FMLA information. The notice must be posted in a conspicuous place where it can be readily seen by employees and applicants.  The employer must also provide this general notice to any eligible employee by including the notice in an employee handbook, or other written document that sets forth employee benefits or leave rights, and given to each new employee upon hiring.
  • Notice of Eligibility and Rights and Responsibilities

The purpose of this notice is two-fold: 

    • Part A of the Notice informs employees requesting FMLA leave whether or not they are eligible for FMLA leave.  When an employee requests FMLA leave, or the employer knows about an employee’s need for FMLA leave, the employer must notify the employee about whether he/she is eligible to take FMLA leave. 
    • Part B of the Notice informs employees about their rights and responsibilities under the law.  Employers must provide written notice detailing the specific expectations and obligations of the employee, as well as explaining any consequence of not meeting their FMLA obligations. 
  • Designation Notice.  When an employer has enough information to determine whether leave is being taken for a FMLA-qualifying reason, the employer must then notify the employee that the leave is designated and counted as FMLA leave.

Employee Notice Obligations

Employee notice obligations are similar to those contained in 1995 regulations, i.e., the employee is required to give at least 30 days advanced notice of the intent to take leave.  The final regulations clarify that an employee can be required to comply with the employer’s procedures relating to notice of absences.

Medical Certification.  These regulations provide two forms of medical certification:

  • Form WH-380E specifically requires more detail about the need for leave due to the employee’s serious health condition and ability to perform the job.
  • Form WH-380F relates to the need to care for a family member which requires more detail about the need to provide care. 

Other FMLA Modifications

Serious Health Condition

The definition of serious health condition has been clarified, specifically as it relates to determining the incapacity period and periodic visits:

  • A serious health condition is one that involves more than three consecutive calendar days of incapacity, plus two visits to a health care provider.  The final regulations modify this determination such that the first visit to the health care provider must occur within seven days of Day 1 of the incapacity; the second visit to the provider must occur within 30 days of the beginning of the incapacity.
  • The reference to ‘periodic visits’ for chronic serious health condition purposes are deemed to be a minimum of two visits to a health care provider, per year.

Health Care Provider.  The list of health care providers for purposes of the FMLA law is expanded to include licensed physician assistants.

Voluntary Waiver.  An employee can voluntarily waive his/her right to FMLA leave, but cannot waive the right prospectively.

Attendance Bonus.  The regulations clarify that attendance bonuses for individuals on FMLA leave must be treated in the same manner as someone on non-FMLA leave.

Light Duty.  The final regulations clarify that time spent performing light duty work does not count against an employee’s FMLA entitlement.

Effective Date

The FMLA final rules become applicable January 16, 2009.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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