On February 11, 2008, the Department of Labor (DOL) published proposed regulations regarding the Family and Medical Leave Act (FMLA). The proposed regulations leave many aspects of the 1995 regulations in place, while changing and clarifying numerous other parts. Some of the most important changes are described below These are proposals, not new rules, so if you like or dislike any of the proposals below, “vote” on them now by sending your input to the DOL. They even accept input by email (see below), making this the easiest “vote” you’ll ever cast; your deadline is April 11.
Joint Employment
The DOL is proposing to clarify how the joint employment rules apply to Professional Employee Organizations (PEOs). Under the proposal, PEOs that contract with client employers merely to perform administrative functions—including payroll, benefits, regulatory paperwork and updating employment policies—are not joint employers with their clients provided they do not have the right to exercise control over the activities of the client’s employees and do not have the right to hire, fire or supervise them or determine their rates of pay and do not benefit from the work that the employees perform.
Also with regard to joint employment, the current regulations provide that the employee’s worksite is the primary employer’s office from which the employee is assigned or reports. The DOL is proposing that after an employee who is jointly employed is stationed at a fixed worksite for a period of at least one year, the employee’s worksite for purposes of employee eligibility is the actual physical place where the employee works.
Breaks in Service
Among other things, to be eligible for FMLA leave, an employee must have been employed by an employer for 12 months. The current regulations state that the 12 months need not be consecutive. The DOL is proposing that employment prior to a break in service of five years or more need not be counted.
Definition of Serious Health Condition
The current regulations define “continuing treatment” for purposes of establishing a serious health condition as a period of incapacity of more than three consecutive calendar days and treatment two or more times by a health care provider. However, the current “two visit” requirement is open-ended. One of the proposed clarifications specifies that the two visits must take place within a 30 calendar-day period. Similarly, a chronic serious health condition is currently defined as one that requires periodic visits for treatment, but the regulations do not define the term “periodic visit”. In the proposal, “periodic visit” is defined as visiting a physician twice or more per year for the same condition.
Paid Leave
The proposed regulations require employees taking FMLA leave who wish to receive paid leave to comply with their employer’s paid leave policies. If an employee does not comply with the requirements, the employee is not entitled to substitute accrued paid vacation or personal leave, but remains entitled to all the protections of unpaid FMLA leave.
Awards and Bonuses
The DOL proposes to allow an employer to disqualify an employee from a bonus or award predicated on the achievement of a goal where the employee fails to achieve that goal as result of an FMLA absence. The DOL proposes to change the regulations with regard to light duty. With this change, employees retain their right to reinstatement for a full 12 weeks of leave instead of having the right diminished by the amount of time spent in a light duty position.
Notices
The proposed regulations require covered employers with eligible employees to distribute a general notice of information about the FMLA to employees either by including it in an employee handbook or by distributing a copy to each employee at least once a year, either in paper or electronic format.
The proposed regulations require that an eligibility notice be conveyed within five business days after the employee requests leave or the employer acquires knowledge that the employee’s leave may be for an FMLA-qualifying reason (a change from the current requirement of two business days). The proposed regulation requires the employer to notify the employee whether leave is still available in the applicable 12-month period. If the employee is not eligible or has no FMLA leave available, then the notice must indicate the reasons why the employee is not eligible or that the employee has no FMLA available.
The proposed designation notice requires that an employer notify the employee within five business days (up from two) that the leave is designated as FMLA leave once the employer has sufficient information to make such a determination. The proposed regulations require employers to inform their employees of the number of hours, days or weeks, if possible, designated as FMLA leave. Where the amount of future leave that will be needed by an employee is unknown, the proposed regulations require that the notice of the amount of leave designated and counted be provided every 30 days, to the extent that the employee took leave for the condition in the prior 30-day period.
Under the DOL’s proposal, an employee must provide notice of the need for leave as soon as practicable and must comply with the employer’s usual procedures for calling in and requesting leave, except when extraordinary circumstances exist such as when the employee or covered family member needs emergency medical treatment. The DOL expects that in all but the most extraordinary circumstances, employees will be able to provide notice to their employers of the need for leave prior to the start of their shift.
Certifications
The DOL is proposing that when an employer determines that a medical certification is incomplete or insufficient, the employer must state in writing what additional information is necessary and provide the employee with seven calendar days to cure the deficiency (additional time must be allowed where the employee is unable to obtain the additional information despite diligent good faith efforts). The DOL is also proposing several revisions to the medical certification form.
A proposed change would allow employers to send the absence schedule of an employee to a health care provider and to ask the health care provider whether or not the employee’s pattern of intermittent leave use is congruent with the employee’s qualifying medical condition. The proposed regulations add that recertifications may be requested every six months.
The proposed regulations allow a fitness-for-duty certification similar to that of the initial medical certification of the FMLA leave. The DOL is also proposing that an employer be permitted to require an employee to furnish a fitness-for-duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist. The DOL is also proposing that employers may contact an employee’s health care provider directly for purposes of clarifying and authenticating the fitness-for-duty certification.
Military Family Leave
The regulations also seek public comment on a number of issues related to the new military family leave amendment.
Comments
You can submit comments on the proposed regulations by going to http://tinyurl.com/2m78vy and looking for the proposed regulations with comments due on April 11, 2008.
