DOL Closer to Issuing New FMLA Regs

Update: New FMLA regulations issued by DOL on November 14, 2008

The U.S. Department of Labor (DOL) has sent to the Office of Management and Budget (OMB) its final draft of revised Family and Medical Leave Act (FMLA) regulations, which could be published in the Federal Register this month. These would be the first new FMLA regulations since 1995, when the current regulations were issued. The FMLA itself was enacted in 1993.

In developing the draft final regs, the DOL reviewed several thousand comments on the proposed FMLA regulations it published back in February of this year. The contents of the final draft aren’t yet known, of course, but the final rules may retain some of the following proposed regulations.

New notice requirements for employers. These include the duty to give employees (1) general notice of their FMLA rights, either posted electronically on an accessible website, distribute electronically, or distributed in the employee handbook, (2) eligibility notice, meaning (a) notice of eligibility for FMLA leave given within five business days of the employee’s request for FMLA leave or the employer’s becoming aware the employee may qualify for it, (b) notice of the employee’s rights and responsibilities under the FMLA, and (c) notice of any possible fitness-for-duty determinations at the end of a leave, and (3) designation notice, meaning notice within five business days of whether a leave was designated as FMLA leave.

New notice requirements for employees. Employees generally would have to follow the employer’s usual and customary rules for reporting an absence. Employees wouldn’t have to mention the FMLA by name but must tell their employer (1) they can’t perform their job functions (or a covered family member couldn’t participate in regular daily activities), (2) how long they expect to be absent, and (3) whether they or the relative will be visiting a health care provider or receiving continuing treatment.

Foreseeable leave. Employees would be required to give 30 days’ notice, or as much notice as practicable.

Unforeseeable leave. Employees would have to give notice as soon as practicable, which generally means either the same day or the next business day. Employees must follow the employer’s call-in requirements, and FMLA leave may be denied or delayed if there’s no justification for failing to follow the rules.

Medical certification. The proposed regs include a new medical certification form, Form 380, that would give employers more information than the previous form and give doctors the option of including a diagnosis. Employers would be allowed to (1) contact an employee’s health care provider directly, subject to HIPAA requirements, and (2) authenticate or obtain clarification of information on the medical certification form, provided they first had given the employee a chance to correct problems. Employers wouldn’t be able to seek more information than included on the certification.

New certification, recertification. Employers would be able to seek a new certification each leave year for conditions lasting longer than six months. They could request recertification every six months in connection with a continuing condition, in conjunction with an absence.

Intermittent leave. Employees would be required to make a “reasonable effort” (as opposed to an attempt) to schedule intermittent leave to avoid workplace disruption. They must follow the employer’s regular call-in procedures for intermittent leave and may be disciplined for not doing so.

Serious health conditions. To have a “serious health condition,” employees must have two treatments within 30 days of becoming incapacitated. To qualify as having a chronic condition that requires “periodic” treatments, employees would have to seek such treatment at least two or more times per year.

Other proposed changes and clarifications include the following topics:

• perfect attendance bonuses;
• settlement of claims of past FMLA violations;
• computing the 12-month service requirement; and
• substituting paid leave for FMLA leave.

We will provide more information as soon as we receive and review the new regulations.

Learn more about the DOL’s revised FMLA regs at the new daylong Web seminar “FMLA Compliance Virtual Summit” on Thursday, December 4.

And there’s a new tool to help answer all your FMLA compliance questions, “FMLA Compliance: Practical Solutions for HR”  (to be updated soon with the latest FMLA regs from the DOL).