The Department of Labor (DOL) recently published new regulations governing application of the Family and Medical Leave Act (FMLA).  The regulations create new circumstances under which eligible employees may take FMLA leave and clarify the existing rights and obligations established by the FMLA.  The regulations take effect January 16, 2009.  There are many new provisions, but some of the most important ones are highlighted below.  

Earlier this year, we notified you of new FMLA rights for employees seeking leave to care for family members injured during military service or to help with qualifying exigencies caused by a family member's call to active duty.  Those leave rights were discussed here:

Honoring Military Service FMLA Expansion Provides New Protections for the Families of Servicemembers

The new regulations further explain an employer's obligations related to these types of leave.  Servicemember Family Leave has been retitled "Military Caregiver Leave," but the provisions are substantially the same.  An eligible employee may be entitled to up to 26 weeks of Military Caregiver Leave in a 12 month period to care for family members who are injured while serving on active duty.  Employers have been required to provide this type of leave under the FMLA since January 28, 2008.  

Employers are required to provide Qualifying Exigency Leave beginning January 16, 2009 for qualifying employees whose family members are called to active duty in the Armed Forces.  Qualifying Exigency Leave is only available to employees with a family member who is in the National Guard, Reserves, or is retired from the regular Armed Services or Reserves and is called back to active duty.  It is not available for exigencies associated with the service of a family member who is in the regular Armed Services.  This type of leave is limited to the usual maximum of 12 weeks in a year.  The regulations define eight types of “exigencies” that may qualify for this type of FMLA leave.  They are:

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
8. Additional activities agreed on by employer and employee  

Employers may require appropriate certifications establishing the need for Qualifying Exigency Leave, and may contact third parties to verify the existence and nature of an appointment or meeting that is the basis for the leave request.  

Another important change in the new regulations is clarification of waiver of rights.  The regulations clarify that employees may waive their FMLA rights as part of a settlement or severance agreement.  This is a useful tool for employers, and changes the established practice in our area.  Previously, the Fourth Circuit Court of Appeals, the court encompassing North and South Carolina, among other states, had ruled that such waivers were not permissible unless approved by DOL or a court.  This change will provide additional protection for employers when they settle claims or enter into severance agreements with employees.   

The new regulations also provide many changes to the certification and employer notice laws and the associated forms.  Prudent employers should take immediate steps to update their FMLA policies and procedures, as well as notification and certification documents.