Family and Medical Leave Act Alterations Bringing Clarity, Consternation for Businesses

Published March 1, 2009

The U.S. Department of Labor has given businesses with more than 50 employees a belated Christmas present: 770 new pages of Family and Medical Leave Act regulations.

The “gift” is a mixed bag of hope and consternation, say employer advocacy groups such as the National Federation of Independent Business, National Association of Manufacturers, and U.S. Chamber of Commerce.

They are praising the new rules for clarifying Family and Medical Leave Act (FMLA) matters such as eligibility and ending prospective abuses. Since 1993 the act has given employees the right to take up to 12 weeks of unpaid leave for a personal medical problem or to care for a sick family member.

However, experts note a major element of consternation is the failure of the new rules to resolve the issue of “intermittent leave,” which can create a paperwork nightmare because employees may take FMLA time off in as little as six-minute increments.

Four Key Elements

Karen Harned, executive director of the small business legal center at the National Federation of Independent Business, said four elements of the regulations should aid FMLA-leave eligible businesses:

* Tightening the call-in policy. Previously, employees could tell an employer up to two days after the fact that time away from work should be counted as FMLA leave. Now workers must follow standard procedures to notify their employers in advance whether their time off from work qualifies as FMLA leave.

* To qualify for FMLA leave because of a chronic condition, employees will have to certify they visited a doctor at least twice a year.

* The changes clarify what treatments and conditions qualify as “chronic conditions,” “serious health conditions,” and “qualifying treatments.” “All of that is better defined under the rules,” Harned said.

* Employers can require returning employees to complete fitness-for-duty tasks to avoid risking harm to themselves or others.


But Harned said the clarifications likely will come at a cost as new definitions lead to legal challenges. She also said the FMLA should have been reconciled with the Americans with Disabilities Act.

“The two laws can have contradictory results. For example, employers are able to ask for certification under the FMLA that [workers] have ‘serious health conditions,’ but under ADA they’re not allowed to ask disability-related questions,” Harned said.

Just because someone has a serious medical condition under FMLA doesn’t necessarily mean the person is disabled for ADA purposes, Harned noted

Her advice for employers is to look at the condition of an employee requesting leave to see if the FMLA or ADA or both laws apply

Fewer Abuses

Despite the flaws, “It was definitely a very fair process,” said Keith Smith, director of employment and labor policy for the National Association of Manufacturers. “The Department of Labor’s Wage and Hour Division took great efforts to be able to take into account the concerns from a wide range of stakeholders. The number of commenters was in the thousands.”

Smith said the new rules should help small businesses better understand how the FMLA is supposed to be used.

Smith said the changes should reduce FMLA abuses by workers. As of January 16, businesses can clarify and verify the condition with an employee’s medical health provider without a fear of thereby violating the federal Health Insurance Portability and Accountability Act.

Extended Reach

The changes open the door for workers to take FMLA leave for other than medical reasons.

The new guidelines entitle a family member of a National Guard service person called up to active duty to take up to 12 weeks of unpaid time off. They also permit an eligible employee to take up to 26 weeks of leave to care for a family member in any of the armed forces who is undergoing medical treatment, recuperation, or therapy as a result of a serious injury or illness that occurred in the line of active duty.

Ted Knutson ([email protected]) writes from Washington, DC.

For more information …

Family and Medical Leave Act changes: