The Family and Medical Leave Act just got a huge makeover, with major implications for employers across the country.

Employers will have to make significant changes to their leave procedures under final FMLA regulations released in November by the Department of Labor - the first revisions to FMLA since its passage in 1993. They took effect on Jan. 16.

"The DOL has changed all of the forms associated with FMLA leave, including its medical certification form and employer response form, which is now split into two forms - notice and designation," explains Ellen McLaughlin, an attorney with Seyfarth Shaw. "This will increase the administrative burden on employers, but the stated reason for this change is to provide the employee with more detailed information as to his/her rights and obligations under the act."

The final regulations are substantially similar to those proposed, with a few notable exceptions, says McLauglin. "Two of the most significant changes from the prior regulations involve what medical information the employer can get to verify an employee's or eligible family member's serious health condition and how an employer can get this information.

Overall, the final regulations are a win for employers in this area. Employers now able to get more detailed information regarding an employee's or eligible family member's serious health condition, and it is easier to get this information, as the employer - not the employer's health care provider, per the old rules - can make contact with the employee's health care provider."

Another significant change is that the employee must notify the employer about the need for leave the same day that the employee knows of the need for leave or the next day. Under the old rules, employees could delay telling their employers, resulting in staffing problems due to the lack of notification and unscheduled absences, McLaughlin indicates.

In the past, employers complained that the legal definition of "serious health condition" qualifying for FMLA leave, is too vague and unclear. The final regulation defines a serious health condition as something that requires two visits to a health care provider per year and three consecutive calendar days of incapacity. The two physician visits must occur within 30 days of the period of incapacity, and the first visit must occur in person.

Other key provisions in the final regulation include:

• Workers must follow their employer's attendance policies in order to substitute for FMLA leave any form of accrued paid leave, such as paid vacation, personal days, family leave, sick days and paid time off. For example, if vacation day requests must be submitted two weeks ahead of time, that condition applies if the employee wants to substitute paid vacation days for FMLA leave.
• An employer can deny a perfect attendance award to someone who has taken FMLA leave, as long as it does the same to employees who take non-FMLA leave.
• The time an employee works in a light-duty role does not count against his or her FMLA entitlement.
• A worker may be charged FMLA leave for overtime hours not worked, if the person would have been required to work the overtime hours but cannot do so because of an FMLA-qualifying condition. Employers cannot discriminate in the assignment of overtime hours in order to deplete an employee's FMLA leave entitlement.
• If an employee needs less than a full week of FMLA leave, and a holiday falls during that partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee's FMLA entitlement if the employee would not otherwise have been required to work on that day.

Mixed reactions from employers, stakeholders

The final rules have received a mix of praise and criticism.

China Minor Gorman, chief operating officer for the Society for Human Resource Management, observes, "This landmark piece of legislation has presented challenges in the workplace due to vague and confusing regulations, which have allowed for misuse of leave, unfairly burdening colleagues forced to cover the unpredictable absences of their co-workers. While additional improvements are still needed, this rule strikes the right balance, preserving the act's critical benefits for employees and providing HR professionals and the organizations they support with greater clarity as they implement this law."

Helen Darling, president of the National Business Group on Health, praises the revisions. "By modernizing the 15-year-old law, the administration has provided large employers with clear, uniform and updated rules that will help them make this law work more effectively for workers and their families."

Likewise, Lisa Horn, chair of the National Coalition to Protect Family Leave, a nonpartisan group of employers and industry associations, says, "FMLA was never intended to turn full-time jobs into part-time jobs [or] to allow employees to take sporadic leave without any notification to employers. This rule simply restores the balance Congress intended between employers' needs for employees, and employees' need for time to attend to important family and medical issues."

However, Debra L. Ness, president of the National Partnership for Women & Families, criticized the FMLA revisions for making it harder for employees to take leave.

"The new FMLA regulations for workers take us in the wrong direction and are harmful and unnecessary. They will restrict access to protections workers have relied on for 15 years - protections they need now more than ever, with the economy in deep trouble and families struggling terribly," she says.

"FMLA is a success story. Over the last 15 years, workers have used it more than 100 million times to take the leave they needed without putting their jobs at risk. There was no reason to restrict it, and no recent scientific study indicated a need for these regulations."

John Sweeney, president of the AFL-CIO labor union, call the new FMLA rules "another slap in the face to working families who are struggling just to get by in the midst of an unprecedented economic crisis. It's reprehensible - but all too predictable."

Military families

The final regulations address new military family leave entitlements enacted as part of the National Defense Authorization Act. The law now guarantees up to 26 weeks of job-protected leave for employees to take care of a family member with a serious injury or illness incurred during active military duty.

The law also permits employees to take up to 12 weeks of leave when their spouse, child or parent is called to active duty in the National Guard or Reserves. This leave provides time to handle personal matters, such as childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; short-notice deployment; military events; and post-deployment activities.

"This final rule, for the first time, gives America's military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty," says former U.S. Secretary of Labor Elaine L. Chao.

Ness called these provisions "mostly good news for military families. We are delighted that military families will finally get some of the additional support they need and deserve. With these regulations in place, military families should be able to use the leave they need when they need it.

"While we would have liked the regulations to allow regular active duty military family members to use FMLA leave while a service member is deployed, these measures still can make a real difference for families that have made great sacrifices and are under enormous stress.

"It is welcome and badly needed. This is the first-ever expansion of the FMLA, but we hope and expect that it will not be the last."

Senior Editor Lynn Gresham contributed to this report.