In 2009, the Department of Labor made changes to the FMLA, clarifying several of the key definitions included in the regulations and formalizing how employers are to communicate FMLA benefits to employees.  While it has been two years since the new legislation was passed, it can be nice to have a quick key point summary as a refresher.

Before getting to the changes in the regulations, let’s start with a quick summary of the basic premises of the law.  Employers (including private employers, nonprofit organizations, and government entities) who have employed 50 or more full- or part-time employees for 20 or more workweeks in the current or preceding calendar year are subject to the FMLA regulations.  To be eligible for an FMLA leave of absence, an employee must have worked at least 12 months (total) for the employer and have worked 1,250 hours in the 12-month period preceding the commencement of the leave request.

The FMLA allows employees to take up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period in the following cases:

–          For incapacity due to pregnancy, prenatal medical care, or childbirth;

–          To care for the employee’s child after birth or placement for adoption or foster care;

–          To care for the employee’s spouse, son or daughter, or parent who has a serious health condition;

–          For a serious health condition that makes the employee unable to perform his or her job.

Okay, so now that we have established who and what the law has always covered, let’s move on to the changes that were made in 2009 with regard to notice to employees regarding their FMLA rights, what constitutes a “serious health condition,” and intermittent leave.

Communication of FMLA Benefits

Employers must now post a revised FMLA poster entitled “Employee Rights and Responsibilities Under the Family and Medical Leave Act” (as revised 1/16/09).  In case you do not have a copy of the poster, here is a link that will take you directly to it so all you have to do is print it out and tack it up if you haven’t had the opportunity to do so already:


This poster includes both the changes made to the FMLA regarding the definition of a serious health condition and the new regulations on how to handle Military Family Leave Entitlements.

Employers are also now required to include information about employee rights and obligations under the FMLA in employee handbooks or other written materials.  If your company does not have a handbook, you still must provide general written guidance about employee rights and obligations under the FMLA whenever an employee requests leave.

Updated Definitions – Serious Health Condition

The new regulations define a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves:

– any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or

– a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or

– any period of incapacity due to pregnancy or for prenatal care; or

– any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or

– a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,

– any absences to receive multiple treatments (including any period of recovery) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Thoughts on this issue: It is just as important to notice what is not included on this list as what is included.  Many employees think that they can simply ask for FMLA leave when they have run out of sick/personal days.  That is not the case.   A trip to the emergency room because of a case of bronchitis, or a visit to see your doctor to treat poison ivy, most likely will not require the level of follow up required under the definition of a “Serious Health Condition” and therefore would not qualify for FMLA leave.

Intermittent Leave

The new FMLA regulations clarify that employees who require intermittent FMLA leave for planned medical treatments have an obligation to make a “reasonable effort” to schedule such leave so as not to unduly disrupt the employer’s day-to-day operations.   This is good news, as it empowers employers to require that leave requests not damage business production schedules.

The Bottom Line

It is important to note that the FMLA provides a minimum or basic package of rights and obligations, and state and local laws are permitted to exceed its minimum requirements.  For example, the state of Kentucky has no minimum employment requirements for employees making FMLA adoption leave requests.  Therefore, it is advised that you have a local employment attorney review your FMLA policies before they are published to ensure compliance at the federal and state levels.

Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
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