Richard D. Alaniz

When someone mentions the Family and Medical Leave Act (FMLA), many people immediately think of pregnancies. And FMLA is a resource for employees impacted by pregnancies, but it’s much more than that. On Jan. 16, 2009, new regulations governing the Family and Medical Leave Act became effective. These changes present a good excuse to review FMLA issues, as they are proving expensive. A recent survey by determined that the average cost to defend an FMLA lawsuit is $80,000 and that’s if you win. In 2008, Chase bank didn’t win and was ordered to pay almost $8 million for violations of the FMLA.


The FMLA is a federal law requiring employers to give covered employees up to 12 weeks of unpaid leave for serious health conditions as well as several other employee needs such as the birth or adoption of a child. The law applies to all public sector employers and any private sector employer with at least 50 employees. A covered employee is any employee with at least 12 months and 1,250 hours of service to the employer. In short, if your company has at least 50 employees and you have operated for at least a year, you need to understand the FMLA better than Chase bank did.


An employee is entitled to FMLA leave for any “serious health condition.” And the employee can take leave for either their own serious health condition or that of a close family member. So what is a serious health condition? There are actually six definitions and an employee only needs one.

1.An illness, injury, impairment, or physical or mental condition that involves inpatient care at a hospital, hospice, or residential care facility.

2.Continuing treatment by a health care provider for any period of incapacity related to pregnancy or prenatal care.

3.Continuing treatment by a health care provider for a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.

4.Continuing treatment by a health care provider for any absences to receive multiple treatments for restorative surgery or for a condition that would result in at least three days of incapacity if untreated.

5.Continuing treatment by a health care provider for a period of incapacity lasting more than three full consecutive calendar days.

6.Continuing treatment by a health care provider for any period of incapacity or treatment for chronic serious health conditions over an extended period of time.

If you’re thinking, “Wow, that’s a lot of different things,” you’re absolutely right. It’s because FMLA extends to so many different medical conditions that it’s easy to mistakenly deny an employee leave they are entitled to. And that’s a lawsuit.

Definitions 5 and 6 are particularly vulnerable to employee abuse and have consistently been a thorn in the side of employers. In a minor victory, the U.S. Department of Labor (DOL) did add some new restrictions to them. Definition 5 now requires that the employee must make two separate visits to the doctor within 30 days of the incapacity. The first visit must be within seven days of the incapacity. Alternatively, the employee may receive one treatment within seven days of the incapacity and then undergo a regimen of treatment. Definition 6 now requires at least two visits to a health care provider per year before the treatment is considered periodic.


The realities of extended military deployments for our men and women in uniform have led Congress to create two new categories of coverage designed to help them. The first is for Qualifying Exigencies related to a call to active duty. The second is a Military Caregiver category intended to allow employees to care for a family member injured while on active duty.

The Qualifying Exigencies category gives employees 12 weeks of unpaid leave to deal with circumstances arising out of a family member’s active duty or call to active duty status. The Department of Labor has identified eight circumstances that constitute a qualifying exigency.

1.Anytime the call to active duty status is seven days or less (short notice deployment).

2.To attend military events and official activities.

3.To attend to childcare and school activities.

4.To make financial or legal arrangements.

5.To attend non-health care related counseling.

6.An employee is entitled to five days of FMLA leave to spend with a family member on short-term rest leave.

7.To attend post-deployment activities such as ceremonies for up to 90 days after active duty ends.

8.To attend additional activities not listed but agreed to by the employer.

The Military Caregiver category allows an employee to take up to 26 weeks in a 12-month period (the longest period afforded any category under FMLA law) to care for a spouse, son, daughter, parent, or next of kin recovering from a serious illness or injury sustained while serving on active duty. Military caregiver leave may be combined with other types of FMLA leave but the total FMLA leave cannot exceed 26 weeks in any 12-month period.


Under the old law, many FMLA violations were subject to a “categorical” penalty which awarded employees 12 more weeks of FMLA leave for any employer violation. Employers pointed out that at least some technical violations resulted in only a minimal impact on the employee and should not warrant a full 12 more weeks of leave. And the Department of Labor actually listened. Under the new FMLA, the categorical penalty has been removed and now courts will assess the impact of the specific violation before imposing any penalties.

Another change was barely a change at all but is helpful for employers. Employers have always been able to require employees to use their paid time off - sick time, comp time, vacation time, etc. - as part of their FMLA leave. The courts clarified that all paid time off is now treated the same for FMLA purposes.

The Department of Labor has also imposed several new notices requirements on employers. It has released a new bulletin board poster. Employers should display this poster as soon as possible. Employers are also required to give employees copies of the new WH-381 Notice of Eligibility and Rights of Responsibilities Form and WH-382 Designation Notice Form. This should also be done as soon as possible. Copies of the bulletin board poster and all the forms can be found


In what must have been an accident, the DOL made some changes that actually help employers. The biggest is a new requirement that employees provide medical certification of their serious health condition. This comes with several caveats. Employers should use DOL form WH-380 E/F to ensure their request for certification only requests permissible information. Once completed, the form may only be given to the employer’s human resources professional, a leave administrator, or a management official. But under NO CIRCUMSTANCES may the form be given to an employee’s direct supervisor. If an employer is unsatisfied with the certification provided by the employee, it must notify the employee in writing of what portions are incomplete or insufficient and give the employee seven calendar days to cure the deficiency. Employers are also now permitted to request a new medical certification each leave year for conditions lasting longer than one year.

Another win for employers was new regulations requiring employees to notify employers they are taking FMLA leave using the employer’s usual and customary call-in procedures for reporting absences, absent unusual circumstances. Under the old law, employees could be absent for two full days before they were required to notify their employer.

The fitness for duty regulations were also modified. Employers are still permitted to require employees returning from FMLA leave to submit to a fitness for duty exam; however the exam must now specifically address the employee’s ability to perform the essential functions of the job. If the job has reasonable safety concerns, an employer may require certification for employees returning even from intermittent leave.


Changes in the law are often hard for employers to keep up with and can result in lawsuits until the law becomes more familiar. But there are a few steps employers need to take right now to reduce the likelihood of a lawsuit. First, post the notices. They need to be up as soon as possible. Second, if you don’t already have one, designate a trusted manager as the FMLA decision-maker and record-keeper, preferably one familiar with your policies. Pick a manager who is not a direct supervisor of any employees who might ask for FMLA leave, if at all possible. Have that manager visit the U.S. Department of Labor Website and familiarize themselves with the new rules of the FMLA. Last, update the company FMLA compliance policies. The new regulations give employers new rights. Make the most of them!

Publication date:03/23/2009