Revised FMLA Regulations to Impose New Employer and Employee Obligations

By Mark A. Lies II, Seyfarth Shaw, LLP


On November 17, 2008, the U.S. Department of Labor (DOL) issued revised regulations interpreting the Family and Medical Leave Act (FMLA) of 1993, as amended. These are the first revisions to the regulations since they were issued in April 1995. Barring any action on the part of Congress (which is not presently expected), the revised regulations were set to go into effect on January 16, 2009.

The DOL’s decision to overhaul the regulations dates back to late 2006 when the DOL first issued a request for information (RFI) from the public on what needed to be changed in the regulations. In response to the RFI, the DOL received thousands of comments from employer and employee groups, as well as from the medical community. The DOL then held a stakeholder’s meeting to gather additional information on how to change the medical certification process. This culminated in the issuance of proposed revisions to the regulations in February 2008. Again, thousands of comments were submitted and the DOL issued a detailed summary of the comments as part of the new regulations.

The new regulations change some of the former interpretations, and renumber and reorganize certain provisions. DOL has also revised some sections to include language clarifying several provisions that had been subject to conflicting court interpretations. In addition to reorganizing, modifying, and clarifying existing regulations, the DOL issued new regulations addressing the January 2008 service member amendment to the FMLA, which provides leave for qualifying exigencies for eligible family members of personnel on active duty and to care for ill or injured service members.

In undertaking to update the regulations, the DOL was faced with the difficult task of balancing the conflicting interests of employers and employees, as well as the health care providers who are required to certify serious health conditions. Overall, the new regulations benefit employers more than they do employees, and impose additional obligations on health care providers.

There were many changes to the regulations and a “Management Alert” issued by Seyfarth Shaw, LLP, does not address every change or clarification made to the regulations. Rather, the firm has selected what they believe are the most significant changes and/or clarifications for most employers as they begin to review and revise their FMLA policies and procedures in order to bring them in compliance with the new regulations.

For those interested in reading the new regulations and the DOL’s accompanying commentary, this information is available online at www.dol.gov/esa/whd/fmla/finalrule.htm.


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