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Major Changes to the FMLA Will Impact Companies in 2009

Significant changes to the Family and Medical Leave Act (“FMLA”) became effective on January 16, 2009. These changes should prompt companies to update policies and implement training for managers to avoid noncompliance that could invite litigation. The FMLA requires companies with 50 or more employees to provide unpaid leave with guaranteed job reinstatement to eligible employees. The Department of Labor (“DOL”) recently published new FMLA regulations, expanding the types of available leave and changing FMLA notice obligations.

The FMLA was amended in January 2008, but certain parts of that law did not become effective until the DOL’s new regulations took effect on January 16. Employers are now obligated to provide up to 26 weeks of leave for an eligible employee to care for family members injured during military service. A “spouse, son, daughter, parent, or next of kin” may take this leave to care for a member of the armed forces suffering from a serious injury or illness incurred while on active duty. Notably, the new regulations make it clear that a single employee with multiple family members on active duty may be entitled to multiple 26-week allotments.

Under the new regulations, employers must also provide up to 12 weeks of leave to eligible employees whose family members are called to active duty. This leave is available only when the family member is in the National Guard or Reserves or is retired from the regular armed services or Reserves and is called back to active duty. The regulations define eight types of “exigencies” that may qualify for FMLA leave, including: military events and related activities; childcare and school activities; making financial and legal arrangements; counseling; participating in rest and recuperation leave; and post-deployment activities.

The new regulations allow employees to waive FMLA rights as part of a privately negotiated release. This is useful for employers and requires immediate attention to severance plans and releases being used in connection with any reduction in force.

A significant change has been made to employee notice obligations. Employees are now required to follow their employers’ usual procedures for reporting an absence, even if the absence is covered by FMLA. This is an important tool to curb abuse of FMLA leave, and employers should review their “call in” procedures to determine if those procedures can be improved. 

Employer notice obligations have also been expanded. Employers must now provide written notification concerning eligibility, written notice of rights and responsibilities, and a final notice designating whether the leave is approved as FMLA leave. Failure to provide the required notice may result in the employee being able to have a longer leave period. The certification process has been expanded, allowing employers to contact health care providers directly in some situations.

The changes to the FMLA are significant, and covered employers should immediately update their FMLA policies and procedures. Employers who fail to educate their managers and update their policies and forms expose themselves to an expanded risk of claims for improper denial of FMLA leave.

© 2009 Poyner Spruill LLP. All rights reservedNational Law Review, Volume , Number 234


About this Author

Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all...