1. FAMILY AND MEDICAL LEAVE ACT
Regulations Updates
Effective 01/16/09

2. Employee Eligibility
“12 months of employment requirement”
– Prior Legal Framework
 Employee must work for employer for a total of 12
months.

3. Employee Eligibility
12 months of employment “PRIOR” regulations stated that
the 12 months need not be consecutive so there was an open
issue with respect to counting periods of employment prior to a
break in service, e.g., Employee works for employer for 3 years,
quits and does not work for employer for 5 years. When employee
returns to work, when does employee become eligible for FMLA
leave?
Periods of employment prior to a five year break in
service would count toward the 12 months of
employment eligibility requirement.
Left open issue of impact of longer break in service.

4. Employee Eligibility
FINAL REGULATIONS
In determining whether an employee has been employed
for a total of 12 months:
Employment periods prior to break in service of 7 years or more need
not be counted; however, an employer may consider prior
employment falling outside of cap, provided uniform application.
Except that, periods of employment prior to a break in service of more
than 7 years must be counted where:
• Break due to National Guard or Reserve military service
duty; time served counts toward 12 months
• Written agreement (e.g., Collective Bargaining
Agreement) exists concerning intention to rehire after
break in service

5. Employee Eligibility
Impact of final regulations on “12 months of
employment requirement”
 FMLA only requires 3 year retention of
employment records
 Final regulations create proof issue because of
need to review prior employment within 7 year
period.
It appears that the employee may have the burden of
proof if employer doesn’t have documents after 3 years.
However, if the employee establishes proof and the
employer can’t disprove it, the employer have to
recognize the prior service.

6. Employee Eligibility
Final Regulations
Determining employee eligibility for FMLA leave while
employee is on non-FMLA leave
 Determination of 12 months and 1,250 eligibility requirements
must be made as of the “date FMLA leave commences”
 An employee may be on “non-FMLA leave” at the time he or
she meets the eligibility requirements; the period of leave
taken for an FMLA-qualifying reason after the employee meets
the eligibility criteria will be FMLA leave
 Carefully consider whether to provide non-FMLA leave to
new employees
 New employees will in some instances become eligible for
more leave than employees with longer lengths of service
(DOL views this as employer policy issue)

7. Employee Eligibility
Final regulations also coordinate with USERRA
regulations to provide that an employee’s absence
due to National Guard or Reserve military
obligations count toward employee eligibility
requirements
– 12 month requirement
– 1,250 hour requirement

8. Joint Employer and PEO Issues
Employee leasing arrangements’’—like those involving
temporary services firms and other staffing companies—
refer to arrangements in which the staffing firm places its
own employees at a customer’s place of business to
perform services for the recipient’s enterprise.
The PEO, or "HR Outsourcing Vendor" in contrast, contracts
with client employers merely to perform administrative
functions for its clients such as payroll and benefits
coverage and administration (including workers’
compensation insurance and health insurance). The PEO
typically has no direct responsibility over the employees of
its clients including ‘‘hiring, training, supervision,
evaluation, discipline or discharge, among other critical
employer functions.’’

9. Joint Employment and Work Site Provision
In joint employer relationship, primary employer must give FMLA
notice, provide FMLA leave, and continued health benefits.
 For employees of temporary help or leasing entities, placement agency is
typically the primary employer. Job restoration is the primary responsibility of
the primary employer.
 The secondary employer is responsible for accepting the employee returning
from FMLA leave in place of the replacement employee if the secondary
employer continues to utilize an employee from the temporary or leasing
agency, and the agency chooses to place the employee with the secondary
employer.
 Secondary employer must comply with prohibited acts provisions since an
employee on leave who is working for a secondary employer is considered
employed by the secondary employer, and must be counted for coverage and
eligibility purposes, as long as the employer has a reasonable expectation
that that employee will return to employment with that employer.
 Employees jointly employed by two employers must be counted by both
employers, whether or not maintained on one of the employer's payroll, in
determining employer coverage and employee eligibility.

10. Joint Employment & Work Site Provision
PRIOR Regulations
For employees who are jointly employed, for purposes of
calculating “50 employees within 75 miles,” employee’s worksite is
primary employer’s office from which the employee is assigned or
reports
Final Regulations
Adds provision that where employee has physically
worked for at least one year at a facility of a secondary
employer (e.g. client employer), the employee’s worksite
is the facility of the secondary employer

11. Joint Employer Issues and PEO
Final Regulations add reference to Professional
Employer Organization (PEO)
• PEO not joint employer where PEO performs only
administrative functions
• PEO may be joint employer where PEO retains right to
hire, fire, directs or controls employees or benefits from
work performed by the client employees
• Impact of Final Regulations - Review agreements with
PEO to determine to what extent PEO or client employer is
directing employees and retaining responsibility

12. Serious Health Condition
Retains six (6) general categories of a
“serious health condition”
1. Inpatient care (minimum of 1 night hospitalization)
2. A period of incapacity of more than 3 consecutive calendar
days plus treatment by healthcare provider
3. Any incapacity due to pregnancy or prenatal care
4. Chronic conditions requiring treatment by a healthcare
provider
5. Period of incapacity that is permanent or long-term due to a
condition for which treatment may not be effective
6. Multiple treatments for non-chronic conditions that if left
untreated would become serious health condition

13. Serious Health Condition
Final regulations provide clarification to
2 categories of SHC:
– Incapacity Plus Treatment
– Chronic Conditions

14. Serious Health Condition
Prior regulations on Incapacity Plus Treatment
SHC defined to include period of incapacity in excess of 3 calendar days and
subsequent treatment or period of incapacity - plus - Treatment 2 or more
times by a healthcare provide or Treatment 1 time by a healthcare provider
which results in regimen of continuing treatment (e.g., course of antibiotics)
under supervision of healthcare provider.
Final regulations on Incapacity Plus Treatment
Treatment by a HCP must be an “in-person visit” and the first (or only,
depending upon which definition) to the HCP must be within 7 days of first
day of incapacity With respect to requiring treatment by HCP “two or more
times,” treatment must occur within 30 days of the first day of incapacity,
absent extenuating circumstances.
Determination of whether additional treatment visits or regimen of
continuing treatment is necessary within the 30-day period shall be
made by HCP (See New Certification prototype)

15. Medical Certification for
“SERIOUS HEALTH CONDITION”
With the exception of certifications to support a
request for injured service member leave,
annual medical certifications may be required
in cases where a “Serious Health Condition”
extends beyond a single leave year.

16. CHRONIC Health Condition
 Prior Regulations - SHC defined to include chronic conditions
• Requiring periodic visits for treatment by a healthcare
provider
• Continuing over extended period of time
• Causing episodic periods of incapacity
 Final Regulations
• Specifies that “periodic visits” must occur at least
twice per year
• Preamble: Determination of whether periodic visits
are required two times per year is made by the HCP

17. Re-certifications for Chronic Medical
Conditions
The Company may request medical
re-certifications for Chronic, i.e.,
continuing, open-ended conditions,
“every 6 months”
Medical re-certifications may be
requested on a more frequent basis if
there are other change circumstances
or reasons

18. Holidays Occurring
During FMLA Leave
Prior Regulations
• Holiday occurring during a week taken as FMLA leave has no
effect; full week counts as FMLA leave
• Open issue in regulations on impact of Holiday on FMLA
absences of less than a full week
Final Regulations
• Same rule with respect to holiday occurring within week of FMLA
• Leave Specifies that if employee is using FMLA leave in
increment of less that 1 week, Holiday does not count against
FMLA leave unless employee was otherwise scheduled and
expected to work during the Holiday

19. Intermittent/Reduced Schedule
FMLA Leave
Prior Regulations
Employees needing intermittent leave or leave on a reduced
leave schedule “must attempt to schedule their leave so as
not to disrupt unduly the employer’s operations”
Final Regulations
Employee needing intermittent leave or leave on a reduced
leave schedule must “make a reasonable effort to schedule
the treatment so as not to disrupt unduly the employer’s
operations”
 Slightly stronger standard
 No definition of “reasonable effort”
*No clear enforcement mechanism

20. Calculating FMLA Leave where
Employee’s Schedule Varies
Prior Regulations
 Where schedule varies from week to week, calculation of
FMLA leave used based upon weekly average of hours
worked over the 12 weeks prior to the beginning of the leave
period
Fina l Re g ula tions
 Where employee’s schedule varies from week to week such that
employer cannot determine with certainty what hours would have
been worked but for FMLA leave, calculation of FMLA leave used
based upon a weekly average of the hours scheduled over the 12
months prior to the beginning of the leave period (including any
periods of non-FMLA leave)

21. FMLA QUALIFYING EVENTS
1. Because of the birth of a son or daughter of the
employee and in order to care for such son or
daughter
2. Because of the placement of a son or daughter with
the employee for adoption or foster care
3. In order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son,
daughter, or parent has a serious health condition
4. Because of a serious health condition that makes the
employee unable to perform the functions of the
position of such employee

22. NEW Qualifying Event (Number 5)
January 16, 2009
Qualifying Exigencies
Eligible employees with a spouse, son, daughter, or
parent on active duty or call to active duty status in
support of a contingency operation may use their 12-
week leave entitlement to address certain qualifying
exigencies.
The Final Regulations clarify that qualifying exigency leave generally
applies only to families of service members on or called to active duty in
the armed services.

23. “Qualifying Exigency”
The need for leave by the eligible employee must
arise out of the fact that the spouse, son, daughter, or
parent of the employee is a covered military member
in support of a contingency operation.
With one exception, QE leave is family leave: it is not
leave available to an employee who is also a covered
military member.

24. Qualifying *Exigency under FMLA includes the
following eight (8) categories:
1. Short-notice deployment,
2. Military events and related activities,
3. Childcare and school activities,
4. Financial and legal arrangements,
5. Counseling,
6. Rest and recuperation,
7. Post-deployment activities, and
8. Additional activities to address other events which arise out of the
covered military member’s active duty or call to active duty status,
provided the employer and employee agree that such leave shall
qualify as an exigency, and agree to both the timing and duration
of such leave.
* Dictionary Definition of Exigency is a pressing or urgent situation requiring
much effort or immediate action.

25. “Qualifying Exigency”
(1) Short-notice deployment
Where the covered military family member is notified
of a deployment of 7 or less days, an eligible
employee may take up to 7 days of leave for any
reason related to that deployment. The 7 days
begins to run when the covered family member is
provided the short-notice deployment.

26. “Qualifying Exigency”
(2) Military events
Allows leave to attend any official ceremony, program
or event sponsored by the military, and to attend
family support and assistance programs and
information briefings sponsored by the military, military
service organizations, or the American Red Cross.

27. “Qualifying Exigency”
(3) Child care and school activities
Eligible employee may take leave to arrange for child
care or attend certain school functions of the son or
daughter of a covered military family member, including
leave to (i) arrange for alternative school or childcare; (ii) provide
childcare on an urgent, immediate need (not regular) basis; (iii)
enrollment or transfer of a child in a new school or day care facility; and
(iv) attend meetings with school or day care staff regarding discipline,
parent-teacher conferences, and school counselors.
DOL indicates that QE leave is not intended to be used to meet with staff at a
school or daycare facility for "routine" academic concerns. Obviously, in many
circumstances it will be very difficult to determine whether the need to meet with
school staff is casually related to the active duty of a covered military family
member or merely for routine academic concerns.

28. “Qualifying Exigency”
(4) Financial and Legal arrangements
Eligible employees are allowed leave to make or
update financial or legal arrangements to address the
covered military family member's absence while on
active duty/call to active duty, such as preparing
or executing a will, powers of attorney, transferring
bank account signature authority, obtaining military
identification cards, and securing military
service benefits. DOL specifically mentions coverage
to enroll in the Defense Enrollment Eligibility Reporting
System (DEERS). Leave is not available for routine
matters, such as paying bills.

29. “Qualifying Exigency”
(5) Counseling
QE leave is available for the employee to attend
counseling by a non-health care provider. Leave is
available where the counseling is needed by the
employee, the covered military member, or the son or
daughter of the covered military member needs
counseling, PROVIDED that the counseling arises
from active duty service or call to active duty. As
examples, DOL cites counseling by a military
chaplain, pastor, or minister, or counseling offered by
the military or a military service organization that is not
a health care provider.

30. “Qualifying Exigency”
(6) R&R
The Rest and Recuperation category provides leave
to spend time with a covered military member who is
on short-term, temporary rest and recuperation leave
during the period of deployment. Eligible employees
may take up to five days of leave for each instance of
rest and recuperation.

31. “Qualifying Exigency”
(7) Post-Deployment Activities
QE leave is available for the eligible employee to attend ceremonies
incident to the return of the covered military family member, including
arrival ceremonies, reintegration briefings and events, and any other
official ceremony or program sponsored by the military for a period of
90 days following the termination of the covered military member's
active duty status.
It is also available for the employee to take leave to address issues
arising from the death of a covered military family member, such as
meeting and recovering the body and making funeral arrangements.
The DOL specifically noted coverage for participation in the DOD-
sponsored Yellow Ribbon Reintegration Program. Such participation,
moreover, is covered even if it exceeds the general 90-day limitations
period (be a few days) for post-deployment activities.

32. “Qualifying Exigency”
(8) Additional Activities
This category allows leave to address other events
which arise out of the covered military member’s
active duty or call to active duty status provided that
the employer and employee agree that such leave
shall qualify as an exigency, and agree to both the
timing and duration of such leave.

33. Reasonable & Practicable Notice
Employees seeking qualifying exigency leave must
give reasonable and practicable notice if the exigency
is foreseeable.
The notice must inform the employer that a family
member is on active duty or called to active duty
status, cite a listed reason for leave, and give the
anticipated length of absence.
Family members generally are defined broadly.
– A son or daughter on active duty, for example, includes an
employee’s biological, adopted, or foster child, stepchild, legal
ward, or
– one for whom the employee stood in loco parentis, regardless
of age.

34. NEW Qualifying Event (Number 6)
January 16, 2009 (MILITARY CAREGIVER)
Eligible employees may take up to 26 weeks of leave
to care for a covered service member during a single
12-month period.
A covered service member is a current member of the Armed
Forces, including a member of the National Guard or Reserves,
who has a serious injury or illness incurred in the line of duty on
active duty that may render the service member medically unfit to
perform his or her duties for which the service member is
undergoing medical treatment, recuperation, or therapy; or is in
outpatient status; or is on the temporary disability retired list.

35. # 6 MILITARY CAREGIVER
Eligible employees may take more than one
period leave if the leave is to care for different
eligible covered service members or to care for
the same service member with a subsequent
serious injury or illness, except that no more
than 26 work-weeks of leave may be taken
within any “single 12-month period

36. # 6 MILITARY CAREGIVER
Eligible covered service member may be a “*Next of Kin” and
can be in the regular armed forces, Reserves, Guard, or
anyone in those categories on a temporary disability retired
list (TDRL).
“*Next of Kin” excludes the covered service member’s spouse,
parent, son, or daughter, as they already are entitled to leave for this
purpose.
The eligible covered service member must have a serious
illness or injury incurred in the line of duty on active duty, as
determined by the Department of Defense (DOD), that may
render him medically unfit to perform the duties of his office,
grade, rank, or rating and for which he is undergoing medical
treatment, recuperation, therapy, or outpatient treatment or is
on TDRL.

37. # 6 MILITARY CAREGIVER
“Single 12-Month Period”
The method for establishing the “single 12-month
period” for purposes of military caregiver leave is a
period that commences on the date an employee first
takes leave to care for a covered service member with
a serious injury or illness.
Employers do not have the option of using the
calendar-year method as they do for other types of
FMLA leave.

38. FMLA MAY EXTEND BEYOND 26
WEEKS IN UNIQUE CIRCUMSTANCES
The 12-month period for military caregiver leave begins
on the first day of such leave, regardless of the
employer's method of calculating the 12-month leave
period for other types of FMLA leave.
As a result, an employee who has taken other FMLA
leave before beginning military caregiver leave may be
entitled to more than 26 weeks of leave in the 12-
month period beginning with the earlier FMLA leave.

39. # 6 MILITARY CAREGIVER
As in the case of defining a son or daughter, “parent” is defined broadly
but does not include in-laws. “Next of kin” also is defined as categories
of blood relatives, in order of priority, but the “covered service member”
may make a written designation of a specific blood relative as next of
kin, and that will control under the FMLA.
When no such designation is made, and there are multiple family
members with the same level of relationship to the covered service
member, all such family members shall be considered the covered
service member’s next of kin and may take FMLA leave to provide care
to the covered service member; either consecutively or simultaneously.
The Company can ask employees for reasonable documentation of
family relationships; a simple statement will suffice.

40. # 6 MILITARY CAREGIVER
Employer may require a certification from the
covered military member’s healthcare
provider. In addition, Employer may request:
 Military member’s name, branch, rank, and
assignment
 Relationship of Employee to military member
 Name of the facility where military member is
receiving care
 A description of the care to be provided and
estimate of the time needed

41. No Overlap of Service Member and
Family/Medical Leaves
Leave that qualifies both as leave to care for a
covered service member and leave taken to
care for a family member with a serious health
condition during the “single 12-month period”
cannot be designated and counted as both
leave to care for a covered service member and
leave to care for a family member with a serious
health condition.

42. MARRIED EMPLOYEES
In cases where the married couple is employed by the
same Company the two spouses together may take a
combined total of :
1. 12 weeks' leave during any 12-month period for reasons 1 and 2,
or to care for the same individual pursuant to reason 3.
2. The aggregate number of workweeks of leave to which both that
husband and wife can take for reason 5 is 12 weeks.
3. When both husband and wife work for The Company, the
aggregate amount of leave that can be taken by the husband
and wife is 26 weeks in a single 12 month period for reason 5, or
a combination of reasons 5 and 6.

43. Medical Certifications
Final regulations represent significant changes
with new forms for all types of leave
– Employer must request certification within 5
business days after receiving employee notice
– Employee must still provide certification within 15
days

44. NEW FORMS AVAILABLE
The DOL has updated the optional forms provided to assist employers in
administering FMLA. It also has developed forms to implement the new
Military Family Leave Amendments.
The new list of optional FMLA forms include:
1) WH-380E: New Certification of Health Care Provider for Employee’s
Serious Health Condition
2) WH-380F: New Certification of Health Care Provider for Family
Member’s Serious Health Condition
3) WH Publication 1420: Notice to Employee of Rights Under FMLA
4) WH-381: Notice of Eligibility and Rights and Responsibilities
5) WH-382: Designation Notice
6) WH-384: Certification of Qualifying Exigency for Military Family
Leave
7) WH-385: Certification of Serious Injury or Illness of Covered Service
member for Military Family Leave

45. Different Medical Certifications for
Employee and Family Members
Recognizing that employers could benefit from having
greater insight into the reasons why employees could
not perform essential job functions, the DOL has
created a new medical certification form for use in
evaluating the medical need for leave prompted by an
employee’s own serious health condition. (WH-380E)
The DOL also created a separate medical certification
form for use when employees request leave to care for
a family member with a serious health condition. This
form seeks information on the type of care being
provided by employees. (WH-380F)

46. New “Rights & Responsibilities” Form
(WH-Publication 1420)
At the time of their eligibility notice employees
also must receive a written notice of “Rights &
Responsibilities” from the Company detailing
the specific expectations and obligations of
employees and explaining any consequences
of their failure to meet these obligations.
Among other things, the Company must inform
FMLA-eligible employees of
1. Any requirement to provide medical certification,
2. The right to substitute paid leave,
3. Whether and how to pay premiums for continuing benefits, and
4. Job restoration rights upon expiration of FMLA leave.

47. New “Eligibility Notice” Clarifies
Employee Rights to Leave:
A new mandatory WH-381 form replaces the existing optional
Form WH-381, and combines the written notice of “Rights and
Responsibilities” required by the regulations.
• When an employee requests leave or employer acquires knowledge
that an employee’s leave may be for FMLA qualifying reason, employer
must notify employee of employee’s eligibility for FMLA leave within 5
business days, absent extenuating circumstances
• Must state whether employee is eligible
• If employee is not eligible, employer must state at least one reason why
employee is not eligible
• Employer’s notice must include how much time is designated, if known
 For unspecified leave, employer must send notice every 30 days as to
how much leave was designated in the prior month
 Retroactive designation is permitted if no harm to employee

48. “Designation Notice” (WH-382)
Once an employer has obtained sufficient information
to determine whether an employee’s leave will be
protected by the FMLA, the employer must notify the
employee within five business days (a change from the
current requirement of two business days) that the
leave is designated as FMLA leave, absent extenuating
circumstances.
Of course, employers may provide the “Eligibility” and
“Designation” notices at the same time, if they have
sufficient information to do so.

49. Certifying Qualified Exigency Leave
Employers may require certification for qualified
exigency leave
For example, requiring the employee to provide a copy
of the service member’s active duty orders
There’s an optional form, WH-384, for qualifying
exigency certification.
– The regulations also allows employers to verify with a third
party that an employee met with the third party (a teacher, for
example) during the leave.
– If the employee submits a complete, sufficient certification
supporting a request for the leave, the employer may not
request additional information from the employee.
– Recertification isn’t permitted.

50. Certification of Need
for Caregiver Leave
The DOL offers an optional form, WH-385, for
certifying military caregiver leave.
 An employer must accept “invitational travel orders” (ITO) or
“invitational travel authorizations” (ITA) issued by the DOD to
family members for medical purposes as sufficient certification
of the need for military caregiver leave, at least until the
expiration date of the order or authorization.
 The government issues an ITO and ITA so that one to three
family members can immediately travel, at government
expense, to the bedside of an injured service member, and
they’re not issued routinely, so the DOL believes they’re
sufficient certification.
 Employers may seek authentication and clarification of military
caregiver certifications but may not seek second or third
opinions or recertification.

51. Employers Must Notify Employees
of Certification Deficiencies
The Company can contact health care providers directly, but only to
authenticate certification
– Direct supervisors may not be the Company’s representative
– Comply with HIPAA privacy requirements with respect to
clarification
The Company must notify the employee in writing of the additional
information that is necessary to complete the medical certification and
allow the employee seven calendar days to provide the additional
information.
If the employee fails to submit a complete and sufficient certification
despite the opportunity to cure the deficiency or give permission for
the clarification discussion, the Company may deny FMLA leave.

52. Fitness For Duty Certifications
If reasonable safety concerns exist, the
Company may now require more than a
“simple statement” of the ability to return to
work and may require a “fitness for duty”
certification

53. Intermittent Leave
Minimum Increment
Final regulation clarifies
“minimum increment of FMLA leave”
– Must account for leave using increment no greater
than the shortest period of time that employer uses to
account for other forms of leave, provided not greater
than one hour and provided that employee’s FMLA
leave entitlement is not reduced by more than FMLA
leave actually taken
– Preamble – Do not have to account for FMLA leave in
6 minute increments, just because time system is
capable of doing so

54. Inability to work overtime
protected by FMLA
The DOL has clarified that missed overtime must be
counted against the employee’s FMLA leave
entitlement if the employee would otherwise have been
required to report for duty but for the taking of FMLA
leave.
 Inability to work normally required overtime counts against
FMLA entitlement
 Inability to work voluntary overtime does not count against
FMLA entitlement

55. Full Explanation Required
 Calling in sick is not considered a sufficient notice to
trigger an FMLA absence.
 Employees must explain sufficiently reasons for leave
to allow the Company to determine whether the leave
qualifies under the Act. If employee fails to explain the
reasons, leave may be denied.
 When an employee seek leave due to an FMLA-
qualifying reason for which the Company has
previously provided FMLA-protected leave, the
employee must specifically reference the qualifying
reason for leave or the need for FMLA leave

56. Employees must comply with usual
and customary call-in procedures
All employees must comply with *usual and customary
notice and procedural requirements for requesting
leave, absent unusual circumstances.
Examples of “unusual circumstances” may include:
 no one answered telephone number employee called
 company voice mail box is full
 employees are unable to use telephone because they are
seeking emergency medical treatment
*You may have requirements providing written notice
of the reasons and anticipated start and duration of
the leave or requirement that employees contact a
specific individual to request leave.

57. Impact of FMLA Leave
on Bonus Payments/Pay Increases
Final Regulations on Equivalent Pay
1. Pay increases conditioned upon seniority, length of service or
work performed must be granted in accordance with the
employer’s policy or practice with respect to other employees on
an equivalent leave status for a reason that does not qualify as
FMLA leave (no special treatment for FMLA leave)
2. Recognizes that attendance and safety awards are predicated
on the achievement of a performance based goal
3. If bonus or other payment is based upon achievement of a
specific goal, such as hours worked, products sold or perfect
attendance, and employee does not meet the goal due to FMLA
leave, then payment may be denied (so long as consistent with
other employees on equivalent non-FMLA leave)
Note – take into account vacation

58. Time spent performing light duty does
not count toward FMLA entitlement
An employee’s right to FMLA leave and job restoration
are not affected by light duty assignments. Thus, the
employee’s right to job restoration is essentially on hold
during the period of time an employee performs a light
duty assignment.
At the conclusion of the voluntary light duty
assignment, the employee has the right to be restored
to the position the employee held at the time the
employee’s FMLA leave commenced or the employee
may use the remainder of his or her FMLA leave
entitlement.

59. Employer Notice Requirements
Final regulations Consolidates all employer
notice requirements into 4 parts:
• General Notice
• Eligibility Notice
• Rights and Responsibilities Notice
• Designation Notice

60. General Notice
Poster (new prototype form)
• Post in conspicuous place - Where employer has
eligible employees, contents of the general notice (the
contents of the poster) must be included in handbook
or guidance (if such exist) or by distributing to new
employees upon hire (not annual)
• May be distributed electronically so long as
available to all employees
• May be posted electronically so long as available to
all employees
• Must be posted even if no eligible employees
• Increase in daily penalty for failure to post - $110

61. Rights and Responsibilities Notice
Contents of Notice:
• That the leave may be designated FMLA leave if qualifying and 12
month period
• Certification requirements
• Employee right or employer requirement to substitute paid leave
• Health premium payment requirements
• Key employee rights
• Employee’s right to benefits and job restoration
• Employee’s potential liability for failure to pay health insurance
premiums paid by employer if employee fails to return to work
• Other information (such as requirement for periodic reports) may be
included, but not required

62. Designation Notice
• Employer responsible for designating leave
• Prototype notice- must be in writing
• When employer has enough information to determine whether leave
is taken for an FMLA qualifying reason, employer must notify
employee within 5 business days (or earlier, if have enough
information)
• Notice must address concurrent use of PTO benefits
• Notice must address fitness for duty (exception if covered in
handbook policy); include list of essential functions
• Notice must identify amount of leave being counted against FMLA
entitlement; if amount unknown, must provide (upon employee
request) update on amount of leave used (but no more often than
every 30 days and only if leave taken in that period)