Last week, the U.S. Department of Labor (DOL) published a long-awaited proposal to update and retool regulations under the Family and Medical Leave Act (FMLA). The proposal covers many topics, including notice requirements, medical certifications, the definition of “continuing treatment” for a serious health condition, fitness for duty, and more.
Here are some brief highlights on the notice and medical certification issues from the proposal, which spans 127 pages:
Employer notice. The proposed rules would require employers to provide employees with an annual notice of FMLA rights, by way of the employee handbook, or via paper or electronic distribution. Also, employers would have five business days (rather than the two provided under current law) to notify an employee of eligibility for FMLA leave when the employee requests leave or the employer otherwise learns that an employee’s leave may be for a FMLA-qualifying reason.
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
Employee notice. The DOL’s proposal covers several employee notice topics. For example, it addresses what constitutes timely notice of an employee’s need to take leave in cases when the employee becomes aware of that need less than 30 days in advance. The proposed rule states: “Absent emergency situations, where an employee becomes aware of a need for FMLA leave less than 30 days in advance, the department expects that it will be practicable for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours).”
The proposal also covers procedures for requesting leave. According to the revised rules, “absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes a more stringent timing requirement than the regulations provide), and failure to properly notify employers of absences may cause a delay or denial of FMLA protections. Unusual circumstances would include situations such as when an employee is hospitalized and his/her spouse calls the supervisor to report the absence, unaware that the attendance policy requires that the human resources department be called instead of the supervisor.”
Medical certification. In an effort to ease some of the administrative burdens posed by the FMLA, the DOL proposes allowing employers themselves to contact healthcare providers directly, rather than through the employer’s healthcare provider, to authenticate or clarify a medical certification.
The DOL invites public comments on the proposal, which is expected to be finalized sometime this year. All comments must be submitted by April 11, 2008. For more information and to read the regulations, go to the DOL’s website.
The agency is also inviting public comment to help it formulate regulations to implement the brand-new FMLA provisions, signed into law by President Bush in January, granting leave to military families. Under the new law, eligible employees of covered employers can take leave to care for injured service members and because of any qualifying “exigency” arising out of the fact that a covered family member is on active duty. Among other gray areas, the new statute doesn’t define what a qualifying exigency is.