In November 2008 the Department of Labor (DOL) published its Final Rule to implement the first-ever amendments to the Family Medical Leave Act (FMLA). The amendments come from the National Defense Authorization Act (NDAA) of 2008 and provide new military family leave entitlements. The Final Rule also substantially revised many other parts of the implementing regulations of the FMLA for the first time since 1995. The Final Rule became effective on January 16, 2009 just four days before President Bush left office. While the new regulations provide important new entitlements to protected leave for letter carriers who have family members who serve in the Armed Forces, they also impose new burdens on employees who need leave for the already existing reasons for FMLA leave: birth, adoption, foster care placement and serious health conditions.

While the Final Rule does not reduce eligible workers’ entitlement to FMLA leave, the new regulations have imposed additional burdens on employees that make it harder for them to use the leave. For example, the Final Rule has clarified the definition of “serious health condition” in cases involving continuing treatment. Prior to the change, a serious health condition could involve incapacity of more than three consecutive calendar days plus “two visits to a health care provider” or one visit which resulted in a regime of continuing treatment under the health care provider’s supervision. The new rule changes that requirement to more than three full consecutive calendardays. Partial days no longer count. Also under the new rules, the two visits must now occur within 30 days of the beginning of the incapacity and the first visit must take place within seven days of the first day of incapacity. Notably, the health care provider – not the employee – must determine if the second visit within the 30 days is required. Under the previous rules there was neither a 30 day nor a 7 day requirement. Finally, the Final Rule has defined “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year. There was no two visit requirement prior to the change.

In addition to the above, under the previous regulations an employee did not have to assert his or her rights under the FMLA or even mention it by name when seeking leave for a FMLA-qualifying reason. Under the Final Rule, this applies only to when an employee seeks leave for the first time for the FMLA qualifying reason. Once FMLA leave has been granted for an employee’s health condition, the employee, in making future requests for leave, must specifically reference either the qualifying reason or the need for FMLA leave. For further information on the changes to FMLA see the Contract Talk article in the April 2009 Postal Record.

The NALC is currently updating The NALC Guide to the Family and Medical Leave Act and NALC FMLA forms to reflect the new regulations as well as developing new forms for the two categories of military family leave. Until the new NALC forms are published, letter carriers applying for FMLA by using the current NALC forms who are told by their local managers that certain NALC forms do not meet the requirements of the new law should request that local management advise them as to what required information is missing. If you are not sure local management has a right to that information please contact your National Business Agent for assistance.

Because we have a new administration in the White House and there is now pending legislation which would restore some of the rights that have been taken away or otherwise changed in some way, instead of rewriting language that may change again very soon, the parties have removed all reference to FMLA from the JCAM recently posted on line. Once the dust settles, a supplement to the JCAM including language concerning the current FMLA regulations will be provided.