On Monday, February 11, 2008, the U.S. Department of Labor (DOL) published in the Federal Register a long awaited proposal on the Family and Medical Leave Act (FMLA). The DOL proposed revisions to certain existing FMLA regulations and requested public comments on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act. The DOL will use these comments to issue final regulations for these new military family leave entitlements.
Proposed Changes to Existing Regulations
Serious Health Condition
Although many HR practioners would like further clarification of the definition of a “serious health condition”, the DOL did not see this same need and essentially retained the current definition. However, under the proposal the DOL would modify the definition for "continuing treatment" of a serious health condition that includes a period of incapacity of more than three consecutive days and two or more treatments. The DOL proposes that the two treatment visits must occur within a 30 calendar day period. Currently, the time period is undefined. Similarly, where the serious health condition involves a period of incapacity due to a chronic condition, the DOL would clarify that the employee must see a physician at least two times per year for that chronic condition. The existing regulations are pretty vague, simply calling for "periodic visits."
Intermittent Leave
The proposal makes no change in the minimum size of an increment of intermittent leave that can be taken. The existing regulations allow an employer to limit intermittent leave increments to the smallest increment of time permitted under an employer's payroll timekeeping system, as long as it is one hour or less.
The proposal does include a helpful change requiring employees to comply with the employer's call-in procedures before taking unscheduled, intermittent leave. It contains a new provision that will require employees to follow the workplace call-in procedures if they want to take unscheduled, intermittent leave, except in defined "emergency" cases. Currently, employees can take the leave and then designate it as FMLA-qualifying leave within two days of the absence. The proposal only allows such an approach in the case of an emergency.
Medical Certification
The proposal makes a major change in the "medical certification" provisions so that employers will be able to contact medical providers directly to obtain clarification or authentication of documentation. Under the existing regulations, that communication must be between a health care provider representing the employer and the employee's health care provider. The DOL would clarify this process to eliminate the requirement for an employee's consent and would permit an employer to contact an employee's health care provider directly provided there is compliance with the federal Health Insurance Portability and Accountability Act (HIPAA).
The DOL is also proposing revisions to the medical certification process and its optional forms. In this proposal a healthcare provider may disclose diagnosis information on a medical certification. Another is that an employer must inform an employee why a medical certification is incomplete or insufficient and afford the employee seven days to correct it. The DOL also proposes to strengthen the recertification and fitness-for-duty certification processes. Recertification could be requested at least every six months and the fitness for duty certification would be more rigorous.
Other Changes
Other proposed changes would impact employer policies in the workplace. These include a proposal to require employees to comply with the terms and conditions of an employer's paid leave policy when substituting a paid accrued leave, such as paid vacation or paid time-off, for unpaid FMLA leave. Similarly, under the DOL's proposal, an employer could disqualify an employee from a bonus or award based upon achieving a goal if the employee fails to meet that goal due to a FMLA absence as long as other employees on non-FMLA were treated the same.
Probably one of the more significant revisions deals with employer and employee notification requirements. The DOL would require employers to provide notice of FMLA rights and responsibilities to all its employees at least annually. It would afford employers five days instead of the current two days to provide an employee notice of eligibility for FMLA leave as well as FMLA leave designation notice. Likewise, an employee would be required to comply with the employer's usual procedures for calling-in and requesting leave when the employee's need for leave is unforeseeable.
Military Family Leave
The other purpose of this notice is to seek public comments on the new "caregiver" and "active duty" leaves. The DOL asks for assistance in the definition of the term "qualifying exigency" and determining whether it means an urgent or one-time situation or a routine, daily occurrence. The legislative history suggests that arranging for childcare, handling financial or legal matters, or participating in official ceremonies would be "qualifying" reasons.
Also, the DOL has raised numerous questions about the 26-week entitlement of caregiver leave. The 60-day public comment period will help the DOL define certain aspects of this entitlement such as: when the 12-month period commences (date of service member's injury or point in which the employee is needed to care for the service member); the basis on which the 12-month period runs (calendar year or when leave first taken); and whether "single" means it is a one-time entitlement or whether there is another entitlement in a subsequent 12-month period. These are just a few of the areas for which the DOL seeks comments.
What's Next?
The DOL expects to issue the final regulations before the end of the Bush administration. The rules will be open for public comment for 60 days from the date of publication, which was February 11. The final rules on the new military family leave law will contain regulatory language based on comments received during the review process.
