On January 16, 2009, new regulations from the Department of Labor ("DOL") interpreting the Family and Medical Leave Act ("FMLA") take effect.  The regulations cover new rights created by Congress related to leave for military injuries and family obligations, and they clarify and amend certain details of traditional FMLA leave rights.

Employers should review the new DOL regulations and, as necessary, amend policies and procedures to insure compliance.  Pay particular attention to the new forms issued with the regulations.  Smith Moore Leatherwood will provide more information on how to use those forms in our next TIP. Stay up to date on the new FMLA regulations at www.theinsideperspective.com.

Newly added are rules on employees' rights to take FMLA leave to care for their own or their spouse's, son's, daughter's, parent's or next of kin's serious injury or illness incurred during military duty. An employee is entitled to 26 weeks of such FMLA leave in a single 12-month period.  Even where there is no injury or illness necessitating leave, a non-medical "exigency" caused by a family member's service in the National Guard or the Reserves will entitle an employee to leave (limited to the ordinary 12 weeks).  What constitutes an "exigency" will likely be debated going forward, but the Department of Labor has already specifically identified short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, and rest and recuperation.

The remaining amendments and clarifications relate to a range of FMLA details too specific for quick summary.  Most significantly, though, the DOL has created new forms for employers to use in notifying employees of their FMLA rights, responding to requests for FMLA leave, obtaining certifications from health care providers and gathering return-to-work information.

Having spent years developing the new regulations and drafting the new forms, the DOL has indicated that it will be less sympathetic to an employer's claim of innocence when mistakes are made administering FMLA leave.  Stepped-up enforcement actions might not be far behind-all of which makes education on the new rules a priority for the beginning of 2009.