Family Medical Leave Act

Use the newly revised Family and Medical Leave Act (FMLA) without fear—effectively manage FMLA leave and avoid common employer mistakes.

The Family and Medical Leave Act (FMLA) requires covered employers to provide up to 12 weeks of unpaid leave for a birth or adoption, to care for a close family member with a serious health condition, for an employee's own serious health condition, and family military leave when a family member is called up to or on active military service. The FMLA also provides 26 weeks of unpaid servicemember caregiver leave in a single 12-month period for an employee caring for a family member recovering from an illness or injury suffered while on active military duty.

Effective January 16, 2009, FMLA final regulations substantially changed the way in which employers must act to comply with the law. The following is a summary of four critical steps employers should be taking to ensure compliance with the major changes to FMLA.

Among the biggest changes brought about by the final FMLA regulations were the provisions for FMLA notice and medical certification. In response to those changes, the U.S. Department of Labor (DOL) has issued six new standard forms for medical certification and notice of FMLA leave. Employers are strongly advised to familiarize themselves with these new forms and use them now.

Employers should review any policies or processes used in obtaining medical certification for FMLA leave. If a certification is incomplete or insufficient, the final regulations require the employer to give the employee written notice of the additional information needed and allow the employee 7 days to cure the deficiency. Also, while a manager or HR professional can contact an employee's healthcare provider to clarify or authenticate a certification, the employee's immediate supervisor may not. The fitness-for-duty certification may address the specifics of any employee's ability to perform the essential functions of the job.

Employers should review their policies to ensure that references to serious health conditions comply with the new FMLA rules. Specifically, the DOL has changed definitions for what constitutes "continuing treatment" for a serious health condition (now a 30-day limit on the required 2 consecutive visits to a healthcare provider), and a 7-day limit (from the onset of incapacity) on the first visit to the provider. Note also that chronic health conditions require at least two doctor's visits per year.

The final DOL regulations also make changes to leave for adoption, care for adult children, when an employee is "needed to care for" a family member, and the list of covered healthcare providers. Now DOL allows employers to apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave. Employers may choose to change their substitution rules accordingly. Be aware, however, that employers must notify employees of any additional requirements for the use of paid leave.

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