By the BLR Editors
Just My E-pinion
At long last, a response has come from the U.S. Department of Labor (DOL) on its call for public comments on the FMLA. Too bad DOL is a day late and about 10 dollars short.
First came the hope … that, after requesting public comments, the U.S. Department of Labor would clear up problem areas in the Family and Medical Leave Act (FMLA). Then came the long wait. Now come the results.
As we editors eagerly thumbed through DOL’s 161-page report looking for guidance, new regulations, or even clarification on some of the thornier FMLA technicalities, we regret to say we found nothing of substance to help HR practitioners. In fact, the DOL very clearly stated that the report does not signal any forthcoming regulatory changes.
What did we find?
A very large catalog of comments received, including statements from employers on the difficulties they have in managing FMLA intermittent leave, obtaining medical certification, and defining what constitutes a serious health condition, among other issues.
As if we didn’t know about those problems already!
The report, according to the DOL, is a “unique step.” No kidding. Normally, comments received in response to a DOL request for information accompany proposed changes to the rules. Instead, the DOL expressed its hope that the report will “provide information for a fuller discussion … about how some of the key FMLA regulatory provisions and their interpretations have played out in the workplace.” We are not so hopeful.
If DOL Won’t, Others Will
After so many years of lobbying for changes to the law, and so much build up to DOL’s response, HR editors are not the only ones underwhelmed. Employers and employer groups are, too.
Susan R. Meisinger, president and CEO of the Society for Human Resource Management (SHRM), voiced her frustration, saying, “Employees and employers deserve clear, fair rules on family and medical leave. SHRM urges the agency to take the next logical step and issue new rules as soon as possible to address the documented problems.” The report, says Meisinger “underscores the need to correct long-standing inequities and conflicts in how the FMLA is implemented.”
And according to Michael J. Lotito, chair of the Jackson Lewis Management Training Practice Group, “Although the Department is not recommending any changes to the statute or the regulations at this time, others will.” Lotito pointed out that Senator Christopher Dodd (D-Conn.) has introduced legislation to create a federal fund supported by employer and employee contributions which would convert unpaid leave to paid leave.
Lotito observed, “The Equal Employment Opportunity Commission has announced it will pursue cases under Title VII involving family caregiving responsibilities in certain circumstances. Clearly, attempting to strike a balance between work and family is an enormously important issue in American society today.”
What To Do For Now
Since the DOL’s report leaves employers in the lurch for guidance on FMLA’s trickier issues, BLR suggests that employers hold tight and use the following techniques:
Intermittent leave. For time taken in separate blocks for a single qualifying condition (so-called intermittent leave), ask the employee if treatments and/or recovery could be scheduled outside of working hours, or at least on a schedule that better meets business needs.
Request as much notice of the need for intermittent leave as possible. Employers are entitled to up to 30 days’ notice of the need for foreseeable intermittent leave.
Finally, if the employee claims to be able to schedule treatment only during working hours, confirm with the treating physician that the schedule is truly necessary.
Medical certification. Use the DOL’s Certification of Healthcare Provider form (WH-380) to avoid problems. The DOL’s certification form is useful for getting all the relevant facts, but beware—if you are an employer in California, don’t ask the doctor to disclose the employee’s underlying illness. Such disclosure is illegal in the state and could land you in hot water.
For intermittent leave, consider attaching the employee’s attendance records to the request to the healthcare provider. Ask the provider to verify that the records are consistent with medical needs. It’s an effective tactic to deter both employee abuse and doctors’ willingness to sign off on anything a patient asks for.
If you question an employee’s medical status, remember that recertifications can be done every 30 days. Recertifications must be done by the same provider who provided the original certification.
Meanwhile, let’s have less talk and more action from the DOL!