Here’s a handy summary from the DOL. Here are FAQs. Here and here are fact sheets.

Here’s what the DOL identified as the major provisions:

• extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current service members and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all service members;
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

The DOL says it will accept public comments on the proposed regs here (although the new rules aren’t loaded into that system quite yet).

Here’s the FLSA sheet and here’s the FMLA sheet.

Retaliation has now become the #1 most common discrimination complaint filed with the EEOC. Please please please never ever retaliate.

(Special thanks to Eric Meyer for bringing this to the Blawg’s attention.)

Intermittent leave is my #1 nightmare. Let’s say an employee requests leave for migraines. The doctor certifies that the condition will cause “periodic” flare-ups but neglects to state the frequency or duration. Should I approve FMLA leave?

As I mentioned, this is a tricky and technical area. I gave you the basics but promised to give you more details here on the Blawg. True to my word, here you go.

First, here’s a handy graphic overviewing the process:

So, what’s the answer to the question? Maybe, but not without first obtaining additional information regarding the condition.

While chronic migraines can be debilitating, they are also near the top of the list of conditions that lead to FMLA intermittent leave abuse. The key to preventing abuse is to carefully manage the certification process.

Step 1: Incomplete Certification

It is the company – not the employee’s physician – who approves or denies FMLA leave. The first step to preventing FMLA abuse is to make sure the employee’s physician completely fills out the FMLA certification form. A complete form should provide details on the severity and duration of the illness, the effects on the employee’s job and when intermittent leave will be needed.

If you believe the form is incomplete, you must notify the employee. The notice must state what additional information is needed. Generally, the employer must give the employee 7 calendar days to cure the deficiencies unless it’s truly not reasonable under the circumstances. If the deficiencies are not cured within that time period, the employer may deny the FMLA request.

Step 2: Contact the Provider

If after Step 1 you still have questions regarding the form, you may contact the employee’s health care provider to clarify the certification. This should be done by HR — never the employee’s supervisor — and all HIPAA rules should be carefully followed.

Step 3: Recertification

If you have good reason to suspect FMLA abuse (e.g., a pattern of Friday/Monday absences, coming in late the same day every week), you may ask the employee to recertify his/her condition. Generally, an employer may ask an employee for recertification if more than 30 days have passed, with some limited exceptions. Note, though, that if an employer requests recertification, it can’t require a second or third opinion.

Alternatively, the employer may require the employee to obtain a second opinion at the employer’s expense. If a second opinion is requested, the employee is provisionally entitled to FMLA leave during the time required to get the second opinion.  If the second opinion doesn’t establish the need for FMLA leave, the leave shouldn’t be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s other policies.

Step 4: Third Opinion

If the second and first opinions conflict, the employer may require the employee to obtain certification from a third health care provider, at the employer’s expense. The third opinion is final and binding.

The Bottom Line

I hope this helps dispel some of the confusion out there. Again, this is a tricky area and I highly recommend that you discuss the above steps (especially exceptions to the 30-day recertification rule noted above) with your favorite employment lawyer before taking action.

If you have other FMLA questions, here’s our handy FMLA Cheat Sheet and here’s our Library with lots of posts on FMLA and other hot topics.

One item rather frequently requested by our visitors is a handy guide to the interplay among the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA) and workers’ compensation (WC).

Ask and you shall receive …

Click here for our brand-new ADA vs. FMLA vs. WC Cheat Sheet. Thanks to the fine folks at McGuire Woods LLP for their assistance in putting this together!