Department of Labor Publishes Final FMLA Rule

November, 2008

On November 17, 2008, the Department of Labor published the much anticipated final rule regarding the Family and Medical Leave Act.  The new rule will become effective on January 16, 2009.

Highlights of the new rule include:

  • Military Caregiver Leave: Implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

  • Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs — "qualifying exigencies." The rule defines "qualifying exigencies" as: (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.

  • Serious Health Condition: The rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.

  • Overtime: The rule specifies that mandatory overtime that was not actually worked may be counted against an employee's leave entitlement.

  • Perfect Attendance Awards: The final rule changes how perfect attendance awards are treated to allow employers to deny a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA leave — but only if the employer treats employees taking non-FMLA leave in an identical way.

  • Employer Notice Obligations: The final rule consolidates all employer notice requirements into a "one-stop" section of the regulations to clear up some conflicting provisions and time periods.  The notice should include information about eligibility, rights and responsibilities, and the appropriate designation of leave.  Other changes include a new form which allows for additional information if the employer receives incomplete or insufficient information.  The rule also codifies that retroactive designation of family leave may be acceptable in certain situations as long as the employee is not harmed.

  • Employee Notice: The final rule modifies the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rule, the employee must follow the employer's normal and customary call-in procedures, unless there are unusual circumstances.

  • Physician Contact (Content and Clarification):  The rule adds a requirement that limits who may contact the health care provider and bans an employee's direct supervisor from making the contact.  Final rule allows for contact to verify the authenticity or clarification of the medical certification form.

  • Sufficient Medical Information: The rule states that an employer must provide notice to provide medical certification within five days of receiving notice for the leave.  If the certification is insufficient the employer must provide notice to the employee of what information is needed and allow seven days to cure any deficiencies.

You can view the entire text of the final rule as it appears in the Federal Register at:

Be sure to update your family leave policies, procedures, and forms before January 16, 2009.  If you need assistance, Cascade is happy to help.


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