DOL Issues Proposed New FMLA Regulations
 
February 13, 2008
 
Todd D. Steenson- Chicago

On February 11, 2008, the U.S. Department of Labor (DOL) published long-awaited proposed changes to the Family and Medical Leave Act (FMLA) regulations. These are the first proposed changes to the FMLA regulations since 1995. The public will now have 60 days to comment on these proposed regulations and the DOL hopes to issue final regulations before the end of this year.

The DOL stated that changes to the regulations were needed to reflect court decisions, clear up ambiguities and address issues that were not contemplated when the regulations were first issued in 1995. The three major areas addressed by the proposed regulations are:

• the definition of a “serious health condition” entitling an employee to leave
• the rules involving employee use of intermittent leave
• questions concerning the medical certification process

Serious Health Condition

The DOL has proposed two significant changes to the definition of the “serious health condition” entitling an employee to FMLA leave. First, there is a proposed clarification of the definition of a “serious health condition” as a period of incapacity of at least three days coupled with treatment two or more times by a health care provider. Currently, the regulations do not specify when the visits to the health care provider must occur. To remove this ambiguity, the DOL has proposed that the two visits to a health care provider must occur within 30 days of the start of the period of incapacity.

The DOL has also proposed a clarification to the definition of a “chronic health condition” qualifying for FMLA leave. Current regulations define a chronic serious health condition as requiring periodic visits for medical treatment but do not define “periodic.” The proposed regulations define “periodic visits” as two or more per year.

Intermittent Leave

Employer groups consistently identify unscheduled intermittent leave as the most burdensome part of the FMLA. The DOL proposed to limit this burden somewhat by requiring employees to call in advance under employers’ specific absence call-in procedures when taking unscheduled, intermittent leave. Currently, employees certified for intermittent leave can be absent without calling in as long as they designate the leave as FMLA-qualifying within two days after the absence. The DOL proposal allows after-the-fact designation only for specifically-defined emergencies.

On the other hand, the DOL refused to change the current regulation allowing employees to take intermittent leave in the smallest increment of time allowed under the employer’s timekeeping system, rejecting employer requests to limit intermittent leave to half-day or full day increments.

Medical Certification

The DOL also proposed several changes to the process by which employees provide medical certification of their need for FMLA leave. Some of the changes include:

• clarification of when a certification may be rejected as being incomplete
• a new requirement that an employer notify an employee in writing that a medical certification is incomplete or deficient, state what additional information is necessary and give the employee seven calendar days to cure the deficiency
• a requirement that an employer notify an employee if the certification has not been returned in the 15-day time period and give the employee another seven calendar days to provide the certification unless that is not practicable
• a revised WH-380 medical certification form

Another major change proposed by the DOL is that employers be allowed to contact medical providers directly to obtain clarification or authentication of a medical certification. Under the current rule, that communication may take place only between a health care provider who works for the employer and the employee’s health care provider. The new direct contact will be allowed, however, only after an employee has the chance to cure any certification deficiencies. Furthermore, to comply with HIPAA, the employee will need to give the health care provider permission to talk to the employer, but the rule states that failure to give that permission could be seen as a failure to provide proper medical certification. We can expect employee-advocacy groups to object to this recommendation and claim that workers’ privacy rights will be jeopardized.

The proposal also clarifies how often an employee must recertify a serious health condition. If the condition lasts more than a year, the proposal would allow an employer to request an annual recertification. For conditions that are described as “lifetime” or “unknown,” the employer may ask for recertification at least every six months in conjunction with an absence, according to the proposed rule.

Family Military Leave

The DOL also is seeking comments on issues stemming from the recent expansion of the FMLA to cover employees who take time off when family members are on or about to go on active military duty or to care for family members wounded during military service. The DOL did not propose regulations concerning military leave, but rather asked a series of specific questions. For example, the DOL asked for comment about whether “qualifying exigencies” for active duty leave should be limited “to those items of an urgent or one-time nature arising from deployment as opposed to routine, everyday life occurrences.” The DOL also had numerous questions about how to apply the FMLA’s existing medical certification requirements for serious health conditions to leave taken to care for a family member wounded during military service. The final rule, however, will contain regulatory language based on comments received during the review process.

Employers have an opportunity to submit comments concerning the proposed regulations on or before April 11, 2008. Holland & Knight labor and employment lawyers are available to assist those who wish to comment.

For more information, email Todd D. Steenson at todd.steenson@hklaw.com or call toll free, 1.888.688.8500.