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Legal Updates

Updated FMLA Regulations Proposed By U.S. Department Of Labor

The United States Department of Labor (“DOL”) recently issued a proposed set of updated regulations regarding the Family and Medical Leave Act of 1993 (the “FMLA”).  The FMLA is the federal law that provides eligible workers with certain job protections, including the right to take twelve weeks of unpaid leave, in connection with absences resulting from the birth or adoption of a child or the serious health condition of the worker or a qualifying family member.

While the proposed regulations include changes in many areas important to employers (such as when employers may be penalized for technical FMLA violations), the proposed regulations do not address many key areas where employers had hoped for real change (such as significantly greater restrictions on the use of intermittent leave).  Although the new regulations are only proposed, it is expected that the DOL will issue a final set of regulations shortly after the public comment period closes on April 11, 2008.  If implemented without change, the proposed regulations, among other things, would:

  • Eliminate the categorical penalties imposed on employers for failing to timely designate leave as FMLA leave, replacing these penalties with a rule that the employer may be liable to the employee only if the untimely designation of leave as FMLA leave caused the employee to suffer individualized harm;
  • Establish that time spent performing light-duty work does not count against an employee’s FMLA leave entitlement;
  • Clarify that employees may voluntarily settle their FMLA claims without the need for court or DOL approval of the settlement agreements;
  • Confirm that employees with proper medical certification may use FMLA leave in lieu of working required overtime hours;
  • Allow employers to let employees use paid leave concurrently with FMLA leave only if the employee fully complies with the applicable paid leave policy (e.g., if an employer’s paid leave policy prohibits the use of vacation leave in less than full-day increments, then the employee would have no right to use less than a full day of vacation leave while on FMLA leave);
  • Permit employers to deny a “perfect attendance” award to any employee whose otherwise perfect attendance was interrupted by FMLA leave, as long as the employer treats employees taking non-FMLA leave in the same manner;
  • Give employers the unconditional right to directly contact an employee’s health care provider to authenticate the employee’s medical certification, i.e., to verify that the medical certification was in fact completed or authorized by the health care provider and, thus, is not fraudulent;
  • Give employers the right to directly contact an employee’s health care provider to clarify the substance of a medical certification, provided that the employee (a) had an opportunity to cure any deficiencies in the medical certification, and (b) authorized his or her medical provider to communicate directly with the employer, as required by the HIPAA Privacy Rule.  Employees who refuse to provide the required HIPAA authorization would jeopardize their FMLA rights;
  • Authorize employers to (a) require that fitness-for-duty certifications address the employee’s ability to perform the essential functions of the employee’s job, and (b) demand a fitness-for-duty certification when an employee returns from intermittent leave if reasonable job safety concerns exist;
  • Fine-tune the procedures concerning notices and medical certifications, such as by (a) extending the time for employers to provide eligibility and designation notices from two business days to five business days, and (b) establishing that when an employer wants an employee to cure deficiencies in a medical certification, the employer must specify the deficiencies in writing and give the employee seven business days to provide the missing information; and
  • Provide guidance regarding the meaning of “serious health condition” by specifying that (a) under the definition of serious health condition requiring three consecutive days of incapacity plus two visits to a health care provider, the two visits to a health care provider must occur within thirty days of the period of incapacity, and (b) for purposes of chronic health conditions, “periodic visits” means at least two visits to a health care provider per year.

The proposed regulations also seek comments concerning how best to implement the new servicemember family leave provisions signed into law on January 28, 2008.  Those provisions:  (a) permit FMLA leave in connection with a family member’s active duty, or call to active duty, under certain circumstances to be defined in the final regulations; and (b) provide for twenty-six weeks of FMLA leave in a single twelve month period to care for a family member who has incurred a serious injury or illness in the line of active duty for the Armed Forces.  (See FMLA Expansion Effective Immediately, which also appears in this Update.)

We will keep you apprised of any significant developments up to and including the issuance of the final updated regulations.  Meanwhile, the Firm is available to answer questions about the proposed FMLA regulations and to assist with FMLA compliance efforts.