labor lawAdivision of labor law center

The new FMLA regulations go into effect on January 16, 2009.

 

In a key change, the FMLA regulation for Continuing Treatment, Section 825.115, defines a “serious health condition.”  The FMLA permits employees to take up to 12 weeks of unpaid, job-protected leave for a serious health condition. During that period, the employees’ benefits, including their group health insurance, must continue on the same basis as before. After the leave, the employee must be returned to his or her job. If that is not possible, the employee must be returned to a job with the same benefits, wages and working conditions as the previous job.

 

Under the 2009 FMLA regulations, a condition requiring continuing treatment causes an “incapacity” under FMLA when it is a) more than three consecutive full days or b) requires treatment in-person by a health care provider at least once within 7 days of the first day of incapacity. In addition, the condition must meet one of these two requirements: 

• The condition requires continuing treatment initiated by the health care provider during the first treatment or
• A second in-person visit to the health care provider is required within 30 days of the first day of incapacity.  

The new FMLA regulations issued by the U.S. Department of Labor define a chronic serious health condition as one that:

• Requires visits for treatment by a health care professional at least twice per year, requires
• Continues over an extended period of time
• May include recurring episodes of a condition
• May cause episodic incapacity rather than a continuing period of incapacity 

This definition addresses a concern that many employers had under the old FMLA regulations: employees with a chronic serious health condition might see their doctor less than once a year, yet be considered qualified for FMLA.

 

Under the new FMLA regulations, employees must still be eligible. This generally means that the employee must have worked for the employer for a continuous 12-month period, and that the employee must have worked 1,250 hours in the past 12 months, according to the SHRM or Society of Human Resource Management. 

 

 

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