DOL Issues Proposed Revisions To FMLA Regulations

(Published February 12, 2008)

On February 11, the Department of Labor (DOL) published proposed revisions to the Family and Medical Leave Act (FMLA) regulations. The DOL took into account its nearly 15 years of experience administering the law, its two previous studies of the law in 1996 and 2001, several U.S. Supreme Court and lower court rulings, and public comments received in response to a December 2006 Request for Information. The DOL is also seeking comments on the new provisions providing military family leave. (See Employment Law Today, January 29, 2008.)

The comment period is open until April 11. Click here for instructions on submitting comments and to view the proposed regs in their entirety.

Here is a summary of the most significant proposed changes.

Employee Eligibility

Proposal: Employment prior to a continuous break in service of five years or more need not be counted to satisfy the 12-month service requirement. Exceptions: 1) a break in service resulting from an employee's military obligations; and 2) where a written agreement or collective bargaining agreement exists concerning the employer's intent to rehire the employee.

Proposal: After an employee who is jointly employed is stationed at a fixed worksite for at least one year, the employee's worksite for the purposes of satisfying the "50 employees employed within 75 miles" requirement is the actual physical place where the employee works.

Serious Health Condition

Proposal: Stipulating that the "two visits to a health care provider" requirement of one of the definitions of a serious health condition means that the two visits occur within 30 days of the beginning of the period of the incapacity, unless extenuating circumstances exist (e.g., employee has difficulty scheduling the second appointment in time).

Proposal: Defining "periodic" visits for treatment of chronic conditions as twice a year or more.

Employer Notice Requirements

Proposal: To streamline the notice-distribution requirement with the posting requirement, one notice containing identical information can be used to satisfy both the posting and distribution requirements. If the notice is not contained in an employee handbook, it must be distributed annually, regardless of specific requests for leave.

Proposal: Increasing from two days to five business days the time in which an employer must inform an employee of his/her FMLA eligibility after the employee requests leave or the employer becomes aware of the need for leave.

Employee Notice Requirements — Foreseeable Leave

Proposal: Absent emergency situations, employees need to provide notice 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). This replaces the current definition of "as soon as practicable," which is one to two business days.

Proposal: Clarifying that providing an employer with sufficient information to make it aware that FMLA rights may be an issue means indicating that the employee is unable to perform the functions of the job (or that a covered family member is unable to participate in regular daily activities), the anticipated duration of the absence, and whether the employee (or family member) intends to visit a health care provider or is receiving continuing treatment.

Proposal: Absent unusual circumstances, employees may be required to follow established call-in procedures (except those that impose a more stringent timing requirement than the regulations provide). Failure to properly notify employers may cause a delay or denial of FMLA protections.

Employee Notice Requirements — Unforeseeable Leave

Proposal: In all but the most extraordinary circumstances, employees need to provide notice at least prior to the start of their shift and comply with the employer's usual procedures for calling in and requesting leave.

Medical Certification

Proposal: Remove the requirement that employers receive employee consent to authenticate the certification, and allow the employer (rather than the employer's health care provider) to contact the employee's health care provider for authentication and clarification purposes.

Brought to you by the Alexander Hamilton Institute