The Family Medical Leave Act (FMLA) entitles workers to up to twelve weeks of unpaid leave to attend to the “serious health condition” of themselves of a family member. California has a similar state law, the California Family Rights Act (CFRA) that, while similar to the FMLA, contains some critical differences. This area of law is undergoing some critical changes as the U.S. Department of Labor (DOL) has issued significant new regulations.

The DOL this week published revised FMLA regulations, that explain how and when employees can take unpaid leave to care for a sick relative or themselves. The new rules, which take effect on January 16, 2009 are an attempt to resolve frustrations that both employers and employees have with the law. Given the history of FMLA lawsuits, it is likely that these regulations will spawn a new generation of lawsuits to determine their scope and application. In the same token, the California courts will be called upon to examine how the new regulations affect interpretations of the CFRA.

Employers have been frustrated with abuse of FMLA leave, especially in the area of intermittent leave. Employees complain that they're unfairly being denied FMLA leave, and often face retaliation when they take leave.

In an attempt to balance these considerations, the new regulations include the following significant changes:

• Workers with chronic conditions must now certify that they visit a doctor at least twice a year for the condition. The new rules also require workers to notify their employers that they are planning to miss work "absent unusual circumstances."

• An employee's direct supervisor will no longer be allowed to contact a health care provider for medical certification.

• Employers may now require "fitness-for-duty" evaluations to make sure that workers who took FMLA leave are fit to return to their specific jobs. Employers should be cautious to apply such a requirement in a consistent and nondiscriminatory manner. Remember, the employer must pay for a fitness for duty exam.

• Employers will be allowed to consider FMLA absences when giving out bonuses and other incentive rewards. They will be able to disqualify employees from bonuses or other payments based on achievement of a specified job-related performance goal (such as attendance) when the employee has not met the goal due to FMLA leave, so long as this is done in a nondiscriminatory manner. This is intended to overcome past case law where courts held that an FMLA absence could not be weighed against an employee in any circumstances.

The new regulations offer some clarity on the Military Family Leave Amendments, which allow military families to take up to 26 weeks of leave to care for an injured service member. Under the new rules, aunts, uncles, grandparents and first cousins of military personnel will now be able to use unpaid leave to care for injured service members. Ordinarily, FMLA leave is limited to spouses, children and parents. The military leave amendments also allow spouses, children, and parents of service members to take up to 12 weeks of leave to deal with a “qualifying exigency,” and define what circumstances qualify for the leave. Under the new regulations, “qualifying exigencies" include short-notice deployment, military events, childcare and school activities, counseling, financial and legal arrangements, rest and recuperation and post-deployment activities.

Some employee advocates have complained that the regulations do not address the need for greater protections for employees against retaliation.

This is a good opportunity for employers to review and revise their FMLA and CFRA policies. California employers should consult with their labor/employment counsel regarding any revisions to their policies, particularly because the California courts may find the new regulations inapplicable to the CFRA. The one thing that all observers agree on is that these regulations are likely to trigger a new wave of FMLA litigation as employers and employees attempt to interpret and apply the new rules.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, at (559)433-1300.