SC Lawyer, March 2009, #3. Just When You Thought You Understood the Family and Medical Leave Act.

AuthorBy Eric Schweitzer and Luci Nelson

South Carolina Lawyer


SC Lawyer, March 2009, #3.

Just When You Thought You Understood the Family and Medical Leave Act

South Carolina LawyerMarch 2009Just When You Thought You Understood the Family and Medical Leave ActBy Eric Schweitzer and Luci NelsonImportant new Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009. 73 Fed. Reg. 67,934 (Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825). In addition to creating an entirely new entitlement program for Military Family Leave, the revisions are intended to improve employer-employee communications about the FMLA and help clarify employer-employee rights and responsibilities under the Act. Changes to military leave are the most extensive but will be addressed at the end of this article.

Revisions to the FMLA

Serious Health Condition

The revisions tweaked the definition of "serious health condition" by making changes to the definitions of incapacity, continuing treatment and chronic health condition.

To eliminate possible confusion, "incapacity and treatment" is defined as more than three consecutive "full" calendar days (not partial days) of incapacity, plus two visits to a healthcare provider. The first visit must occur within seven days of the onset of the incapacity. Both visits must occur within 30 days of the start of the incapacity, unless "extenuating circumstances" exist (such as where the employee is prevented from a follow-up visit within 30 days because the healthcare provider does not have any available appointments). A single visit to a healthcare provider will not qualify as a serious health condition unless the healthcare provider determines that additional visits or a regimen of continuing treatment (such as oxygen or a course of antibiotics) is necessary. A "treatment" means an in-person visit to a healthcare provider and does not include a phone call, letter, e-mail or text message with a healthcare provider.

To qualify as a "chronic" serious health condition, the employee must certify that he or she visited a healthcare provider at least two times per year for treatment of that condition. Employers may not require employees to make more than two visits per year to demonstrate a chronic condition.


The time frame during which employers should request certification is increased from two to five business days after receiving notice of the employee's need for leave. The employee must provide the certification within 15 calendar days of the employer's request. The burden to provide complete and sufficient certification is on the employee. If the employer determines that the certification is incomplete or insufficient, the employer must give written notice of the additional information necessary and must allow the employee seven calendar days to cure the deficiency. The employer may "deny" FMLA leave until the required certification is provided.

To strengthen employee privacy, an employee's immediate supervisor is banned from directly contacting the employee's healthcare provider for clarification or authentication of a certification. Instead, a healthcare provider, leave administrator, manager or human resources professional may contact the employee's healthcare provider to authenticate or clarify a certification, but under no circumstances may the employer request additional information beyond what was included in the original certification.

Where the serious health condition lasts longer than one year, the employer is permitted to request a new medical certification every 12-month FMLA period.

Although it is not required, DOL encourages the employer to provide a list of essential functions when it requires a medical certification so that the healthcare provider is able to more completely assess the employee's ability to do his or her job.

Notice requirements

To clear up confusing and conflicting provisions and time periods, the employer notice requirements are consolidated into one section, and DOL has provided optional prototypes of all notices (WHD Publication 1420, WH-381 and WH-382) in the appendices to the regulations. An employer may be required to provide the following notices:

(1) General Notice

An electronic general notice of...

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