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Labor Department Set to Implement Broad Changes to FMLA Regulations

Labor and Employment Update

February 18, 2008

On February 11, 2008, the Department of Labor issued proposed changes to regulations governing the enforcement of the Family and Medical Leave Act. The proposed rules were promulgated largely in response to court decisions interpreting current FMLA regulations, as well as issues raised by employer and employee advocates.

Spanning hundreds of pages, the Department of Labor’s proposed rule revisions cover a wide array of topics and have the potential to clarify the FMLA and make it easier for employers to administer.  The proposed changes include the following:

Medical Certification Requirements

  • Once an employee requests leave or the employer learns that the leave may fall under the FMLA, the employer would have five business days instead of two business days to provide the employee with notice of eligibility.
  • A medical certification would be considered incomplete if the employer receives the certification, but one or more of the applicable entries have not been completed.  A medical certification would be considered insufficient when the information provided is vague, ambiguous or non-responsive.
  • An employer who concludes that a medical certification is incomplete or insufficient could return it to the employee with a written statement specifying the additional information needed.  The employee would then have seven calendar days to cure the deficiency, and if the deficiency was not cured, the employer could deny the taking of FMLA leave.
  • Employers would be permitted to request new medical certifications of a chronic or long term condition every six months for employees taking intermittent leave.
  • Employers could provide a list of essential functions to an employee and require the employee's health care provider to certify that the employee can perform those functions before the employee returns to work.
  • Employers could require a fitness-for-duty evaluation every thirty days for workers who take intermittent leave and return to safety sensitive jobs.

Notice Obligations

  • Once an employee requests leave or the employer learns that the leave may fall under the FMLA, the employer would have five business days instead of two business days to provide the employee with notice of eligibility.
  • Employers would have five business days rather than two business days to provide employees with notice of the designation of leave as FMLA leave.
  • Employees would be required to call in to request foreseeable leave prior to taking leave, rather than taking leave for two days and then calling in to request the leave.
  • Employees could be denied FMLA leave if they fail to follow established call-in procedures to properly notify employers of FMLA absences, absent unusual circumstances.

Employee Eligibility for FMLA Leave

  • In determining eligibility for FMLA leave, an employer would not need to count employment prior to a continuous break in service of five or more years toward meeting the 12-month requirement for eligibility under most circumstances.
  • If a jointly-employed employee is stationed at a fixed worksite for at least one year, the employee's worksite for the purposes of satisfying the "50 employees employed within 75 miles" requirement would be the actual physical place where the employee works.

Other Significant Changes and Clarifications

  • Employers could exclude individuals who take FMLA leave from receiving perfect attendance awards and bonuses, so long as individuals who take other types of leave are similarly excluded.
  • Employees would be permitted to waive past FMLA claims without the approval of the Department of Labor or a court in a settlement or separation agreement.
  • The penalty imposed for untimely eligibility and designation notices would be changed to provide that when an employee suffers individualized harm because the employer failed to follow the notification rules, the employer would be liable for compensation, benefits and monetary losses sustained as a result of the violation.
  • One of the definitions of “serious health condition,” requiring “two visits to a health care provider,” would be clarified to mean that the two visits must occur within 30 days of the beginning of the period of the incapacity, absent extenuating circumstances.
  • The definition of “periodic” visits for treatment of chronic serious health conditions would be defined as two or more visits per year.
  • Where an employee takes leave in increments of less than a full week, the employer could count a holiday against the employee's FMLA entitlement only if the employee was scheduled to work that day.
  • An employee seeking intermittent leave would need to make a “reasonable effort” to avoid disruption of the employer’s operations rather than an "attempt."

The preamble to the proposed regulations also addresses the military family leave provisions amending the FMLA which were signed into law on January 28, 2008. While no regulations pertaining to the two new types of leave were proposed, the preamble does pose a number of questions for public comment regarding how those regulations should be drafted.  The issues raised include how the terms "qualifying exigency" and "next of kin" should be defined, whether the terms "son" and "daughter" should be defined differently for the new types of leave and whether the entitlement to 26 weeks of leave to care for a covered servicemember during a single 12-month period should be calculated per injury, per servicemember or per employer.

Bottom Line

We have provided a brief overview of the proposed revised regulations to alert you to some of the more salient proposed changes. In light of the breadth of the proposed regulations, employers should seek the advice of counsel as to specific matters.