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After years of waiting, the U.S. Department of Labor recently published new regulations interpreting the Family and Medical Leave Act. The 762 pages of regulations not only address two new forms of military leave created earlier this year, but also make minor tweaks, major adjustments and wholesale changes to sections of the original FMLA regulations. Not surprisingly, the result is a mixed bag for employers, who must come into compliance with the new regulations by Jan. 16, 2009.

Here is a list of the top seven changes that employers need to know about:

1. Military caregiver leave. The new regulations address military caregiver leave, which requires up to 26 weeks of leave in a single 12-month period for employees caring for family members with serious injuries or illnesses incurred in military duty. It is available to a wide range of family members 鈥� spouses, children, parents, and those 鈥渘ext of kin鈥� of the covered serviceman or woman (which could include siblings, grandparents, aunts and uncles, and first cousins). The regulations also implement a new type of leave in which the employee may take up to 12 weeks of leave (鈥渜ualifying exigencies鈥�) to handle nonmedical situations for a spouse, son, daughter or parent, including short-notice deployment, leave for rest and recuperation, and leave to attend military events, make financial or legal arrangements or attend counseling (among others).

2. Certification process. The new regulations make the certification process more efficient. An employer may directly contact an employee’s health care provider to authenticate or to obtain a clarification of information required by a certification form, although an employee’s 鈥渄irect supervisor鈥� is prohibited from making these inquiries (they must be handled by a human resources professional, a leave administrator or a management official).

3. Incomplete certifications. The new regulations require the employer to notify the employee in writing if the medical certification is incomplete or insufficient to make a 鈥渟erious health condition鈥� determination, and to specifically identify the missing or insufficient (i.e. vague, ambiguous or nonresponsive) information.

4. Employers’ notice obligations. The new notice requirements set out no fewer than four mandatory notices employers must issue. Besides the general notice that must be posted in every workplace and incorporated into any handbook or distributed upon hire, the new regulations require employers to issue a personalized 鈥淓ligibility Notice鈥� within five days of a request for leave. At the same time, employers must also issue a written 鈥淩ights and Responsibilities Notice.鈥� Once it is determined that a leave is FMLA-qualifying, the new rules require employers to issue a written 鈥淒esignation Notice鈥� within five days.

5. Penalty provision. The Department of Labor eased the penalty for failing to provide a required notice. The current rule states than an employer may not count any leave against an employee until after it provides all required notices. The new regulation clarifies that an employer is liable for failing to provide notice only to the extent an employee suffers actual harm, such as lost compensation and benefits, other monetary losses, or loss of employment or a promotion.

6. Notification provision. The new regulations modify a current regulation that allowed some employees to notify their employers of the need for FMLA-qualifying leave up to two business days after an absence, even where the need for leave was known in advance. Under the new regulations, employees must follow their employer’s normal and customary call-in procedures, unless there are unusual circumstances.

7. FMLA rights. Federal courts have split on whether employees are allowed to waive their FMLA rights as part of settlement or severance without approval of the agreement by a court or the Department of Labor. The new regulations make clear that employees may voluntarily settle FMLA claims or waive FMLA rights without such approval, provided they are not doing so prospectively. In other words, like most other statutory rights, an employee may not waive FMLA rights in advance, but may do so as part of a settlement or severance agreement.

So what should your business do in response? Although the regulations have been years in the making and will require significant changes to policies, procedures and forms, as well as supervisor training, the Department of Labor has given employers only 60 days (until Jan. 16, 2009) to implement and comply with the new rules.

Employers need to update their policies and procedures to reflect new or changed requirements, obligations and options under the new regulations. Likewise, every employer must ensure that its leave designation and certification forms comply with the new regulations, which may require the creation of new forms to both comply with and take advantage of employer-friendly options made available under the new rules.

Finally, employers would be wise to train front-line supervisors and managers (who are often the first to learn about a potentially serious health condition) about their general duties under FMLA. It remains a rule-driven law, and while complicated at times, supervisors need to be able to spot FMLA red flags in order to ensure compliance and minimize the risk of legal liability.

Rich Meneghello is a partner at the Portland office of employment law firm Fisher & Phillips LLP, and is dedicated to representing the interests of management. He can be reached at [email protected] or 503-205-8044.