HR Management & Compliance

Family and Medical Leave: DOL Proposes Changes to FMLA Regulations; A Look at the Highlights

In February, the U.S. Department of Labor (DOL) published a long-awaited proposal to update and retool Family and Medical Leave Act (FMLA) regulations. The lengthy proposal covers notice requirements, medical certifications, eligibility, the definition of “continuing treatment” for a serious health condition, fitness for duty, and more. The changes are generally welcome news for employers.

Here’s a look at some highlights from the new proposal, which should be finalized later this year. Note that the proposal also addresses the new law granting FMLA leave to military families. Click here for more on that new development.

Employer Notice

Employers would be required to provide employees with an annual notice of FMLA rights by paper or electronic distribution or by handing out the pertinent section of the employee handbook each year. Also, employers would have five business days (rather than the two provided under current law) to notify an employee of FMLA eligibility when the employee requests leave or the employer otherwise learns that an employee’s leave may be FMLA-qualifying. And, employers would have to provide more detail in their notices than in the past about the time that may be taken off as FMLA leave, including the number of hours, days, or weeks that will be counted as FMLA leave.

Employee Notice

The proposal addresses what constitutes timely notice of an employee’s need to take leave when 30 days’ notice isn’t possible. Except in emergency situations, the employee would have to provide notice of the need for leave either the same day he or she becomes aware of it (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).

Unless there are unusual circumstances, employers could insist that employees follow established call-in procedures (as long as these don’t require more stringent timing than the regulations provide), and an employee’s failure to properly notify employers of absences could cause a delay or denial of FMLA protections. “Unusual circumstances,” according to the rules, would include situations such as when an employee’s spouse reports to the employee’s supervisor that the employee is hospitalized, even though company procedures require that absences be reported to the HR department.

Medical Certification

To ease some of the administrative burdens the FMLA poses, the DOL proposes allowing employers themselves to contact healthcare providers directly to authenticate or clarify a medical certification. You cannot do this under current FMLA regulations.

FMLA Eligibility

The proposed rules provide that the 12 months of employment required for FMLA eligibility do not have to be consecutive, but that employment time before a continuous break in service of five years or more doesn’t have to be counted toward the 12 months.

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Under current rules, if an employee takes a full week of FMLA leave, holidays that fall during that week count against the employee’s 12-week FMLA entitlement. The DOL proposes to clarify that if an employee takes a partial week of leave, and a holiday falls on one of the leave days, those holiday hours don’t count against the 12-week FMLA limit; this is true unless the employee would otherwise have been required to report to work on that holiday. (Click here for a recent CEA article addressing this holiday topic.)


The proposal would eliminate distinctions between attendance bonuses and production bonuses, which are confusing. Employers could deny bonuses to employees who take unpaid FMLA leave and therefore cannot meet the requirements of these kinds of incentive programs—such as hours, sales, or perfect attendance goals—as long as the employer doesn’t grant the bonus to employees on equivalent types of leave. For example, you couldn’t grant the bonus to an employee who took paid vacation but not give it to an employee who used paid vacation during the FMLA leave.


The proposed regulations clarify that employers and employees can voluntarily settle past FMLA claims without obtaining the DOL’s or a court’s prior approval. Note that federal courts have taken varying positions on FMLA waivers (see CEA October 2007), so the proposed rule provides welcome clarification. 

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