November 21, 2008

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DOL Issues Revised FMLA Regulations

On Monday, November 17, 2008, the United States Department of Labor ("DOL") published its final regulations promulgated under the Family and Medical Leave Act of 1993 ("FMLA") and the amendments to the FMLA under the National Defense Authorization Act ("NDAA"), bringing the two year public process to a close. The new regulations take effect on January 16, 2009.

The DOL made only modest changes to its original February 2008 proposals. While largely retaining the changes noted in our previous employer alert, including tightening the notice requirements, easing the medical certification process, and redefining "continuing treatment" for the purpose of establishing a serious health condition, the final regulations include noteworthy additions to the military leave entitlements and the process for "authentication" or "clarification" of a medical certification form.

Military Leave Entitlements

Perhaps most importantly, the revised regulations provide the missing definition for a "qualifying exigency" under the NDAA. "Qualifying exigency" is defined to allow eligible employees with immediate family members (spouses, children, or parents) on active duty or called to active duty to use up to 12 weeks of FMLA leave for: (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) additional activities where the employer and employee agree to the leave. By its express terms, the qualifying exigency provision of the NDAA does not take effect until the Secretary of Labor defines the term. Accordingly, the regulations supplying the definition implement this new statutory military leave entitlement and covered employers will be required to offer military exigency leave when the regulations take effect beginning January 16, 2009.

In addition to providing guidance regarding the military-related leave entitlements, the DOL has issued new certification forms for both wounded servicemember leave and military exigency leave.

Medical Certification Process

The revised regulations retain the proposal allowing an employer to contact an employee's health care provider directly to seek "clarification" or "authentication" of information on the form. However, unlike the proposed regulations, the revised regulations limit which individuals may contact the employee's health care provider by requiring that the contact be made by a health care provider, a human resource s professional, a leave administrator, or a management official, and explicitly ban an employer's direct supervisor from making the contact.

This Employer Alert summarizes only a few of the changes in the 200 page Final Rule published in the Federal Register, which can be found by visiting http://www.dol.gov/esa/whd/fmla/finalrule.htm. Employers should use the relatively short period between now and January 16, 2009, to take the following actions to ensure compliance by the time the rules become effective: (1) become familiar with the requirements of the new regulations; (2) revise existing FMLA policies in order to ensure compliance with the changes to nonmilitary FMLA leave; (3) if it has not already been done, adopt a military leave policy or update any existing military leave policy to reflect the additions contained in the new regulations; (4) conduct training on the new rules; and (5) update FMLA administration forms.

The DOL hopes that the new regulations will help employers and their workers better understand their rights and responsibilities under the FMLA.

Please contact Ellen Glass at 602.440.4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Department for more information, or to attend the breakfast seminar, email pward@rcalaw.com

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