New FMLA regulation changes arrive on January 16, 2009

by on January 23, 2009 · 0 Comment POSTED IN: HR Info Center

You’ll want to revisit your FMLA guidelines and internal FMLA policy

HR folks, look under your tree: The jolly old elves at DOL have left you quite a Christmas “gift.” It’s a 762-page package of new FMLA regulations that will make your lives easier in some respects – but will also keep you busy well into the New Year.

Some of the new FMLA regulations aren’t surprise presents – DOL announced them early in 2008, and we foreshadowed their impact.


Still, there’s enough new stuff, and key changes in the proposed regulations since last winter, to warrant your close attention. The new policies “represent a significant restructuring and revision” of FMLA regulations, as the employment lawyers at Ballard Spahr Andrews & Ingersoll put it.

We’ll go into detail in a minute. But there are at least five steps HR can take to prepare for the regs, which take effect Jan. 16, four days before President-elect Obama is sworn in.


Assuming the new regs aren’t modified or reversed by the Obama administration and Congress, here’s what you’ll need to do:

    • Review your existing FMLA policy and revise as necessary.
    • Create a policy that takes into account the new, separate grounds on which you must offer FMLA military leave.
    • Review any attendance bonus programs (the regs change the way FMLA leave affects such
    • Train managers and supervisors to incorporate the changes in their handling of FMLA issues.

We can’t cover all the changes in a book the size of your average Yellow Pages.

But here are some of the biggest:
Employees must follow your normal procedure for reporting absences where possible, even in the case of unforeseen leave. This means they’ll no longer be able to wait as long as two days to tell you an absence is FMLA-connected. Also employers now have longer – five days vs. two – to inform employees whether their time off will be counted as leave under FMLA regulations. This gives you more time to check FMLA paperwork.
The proposed new FMLA regulations would have allowed any employer’s representative to contact an employee’s medical provider directly to “authenticate and/or clarify” an FMLA certification. But after organized labor complained, the final regulations were changed. An employee’s direct supervisor now can’t initiate contact with a doctor.
But other managers – like HR or a leave coordinator – can contact the provider to

    a) Ensure the FMLA certification is genuine
    b) Clear up questions arising from bad handwriting or ambiguous phrasing.

The new FMLA regulations allow you to demand that an employee certify a chronic condition twice a year, instead of just once as previously. This new rule promises to be particularly helpful where employees are taking intermittent leave, and thus stretching out their 12-week entitlement over a much longer time.

(Unchanged: You can still require certification more frequently if you have reason to believe the employee isn’t being truthful.)

Formerly, if you gave perfect attendance or safety bonuses you couldn’t disqualify an employee for taking FMLA military, medical or family leave.
Now you can, assuming you don’t have other exceptions allowing employees who miss time to qualify.

Several new forms come with the new FMLA regulations. One – Form WH-181 – is now mandatory instead of optional. The new form informs employees of their FMLA eligibility regarding leave. Also, separate optional forms are provided for certifying an employee’s own serious health condition and a family member’s serious condition.

Employers have been waiting for clarification on when employees can take special military FMLA leave, a new category. The regulations give that clarification. “Qualifying exigencies” for military FMLA leave include short-notice deployment, childcare/school activities, financial/legal arrangements, and R&R.

See regs at

Issue 7.10

Leave a Reply


Request a Free Demo

We'd love to show you how this industry-leading training system can help you develop your team. Please fill out this quick form or give us a call at 877-792-2172 to schedule your one-on-one demo with a Rapid Learning Specialist.