On February 11, 2008, the federal
Department of Labor (DOL) published its proposed overhaul of
regulations that implement the Family and Medical Leave Act of 1993
(FMLA). Certain provisions in the proposed rules are clear nods to
court and employer concerns regarding inconsistencies, vagueness and
other practical implementation problems with the Act. Other
provisions provide mere answers to what should have been obvious,
prior enforcement guidance. However, many of the proposed changes
fail to address key ongoing concerns or, worse yet, create
additional potential hardships for employers.
The proposed regulations are not
law, and employers need not make changes to their current policies
or practices until the proposed regulations are revised, finalized
and adopted by the DOL. However, employers would do well to
familiarize themselves with the proposed regulations, as they
provide an important preview of coming attractions. In addition,
employers or groups that wish to provide comments to the DOL
regarding its proposals must do so by April 11, 2008.
An overview of some the key proposed
rule changes is set forth below.
Under the proposed regulations as
Employers have the option of providing a job description or
other statement of essential job functions to a health care
provider for review as part of the medical certification or
A “sufficient medical certification” must specify “what
functions of the employee’s position the employee is unable
If a medical certification is vague, an employer may
contact the employee’s health care provider directly
(as opposed to through the employer’s chosen health care
provider) for purposes of clarification. Employers may also
contact health care providers directly to
authenticate a certification.
- A response to an employer’s request for clarification of
vague, ambiguous or non-responsive medical certifications
must be provided within 7 calendar days, unless not
practicable despite an employee’s “diligent good faith
- Employers can require employees on FMLA leave to
“satisfy any procedural requirements and meet any additional
qualifying standards” of applicable paid leave policies in
order to qualify for such payments.
- When substituting accrued paid leave for unpaid FMLA
leave, public employers can require an employee’s paid
compensatory time to be used concurrently.
- When returning employees to an equivalent position with
equivalent pay and benefits, bonuses “based on the
achievement of a specified goal such as hours worked,
products sold or perfect attendance” can be denied if the
employee has not met the required goal.
- Most significantly, employees may waive, release and
settle past (but not prospective) FMLA claims “without the
approval of the Department of Labor or a court.”
As currently proposed:
Employment periods that preceded a break in service for any
reason must be counted in determining whether an employee
had been employed by the employer for at least 12 months,
when the break is less than 5 years.
Employment periods preceding a break in service of more than
5 years must also be counted when, among other things, “a
written agreement, including a collective bargaining
agreement, exists concerning the employer’s intention to
rehire the employee after the break.”
When an employee is on non-FMLA leave at the time he or she
meets the eligibility requirements of the Act, the portion
of the leave taken after qualifying “would be FMLA leave.”
However, an employer’s generosity in extending FMLA-type
leave to an employee prior to eligibility would not
be rewarded, given that the non-FMLA leave would not
count toward the employee’s total 12-week FMLA entitlement.
The period required for employers to provide FMLA
eligibility and designation notices to employees is extended
from 3 to a whopping 5 business days.
No significant, pro-employer changes were made to the
definition of a “serious health condition” (apart from
clarification that incapacity and continuing treatment by a
health care provider must include 2 treatments within 30
days of the beginning of a period of incapacity “unless
extenuating circumstances exist” or, alternatively, 1
treatment that results in a regimen of continuing supervised
No significant, pro-employer changes were made to the
practical difficulties created by “intermittent” and
“reduced schedule” leave.
In fact, the proposed regulations make things more
challenging for some employers by noting that intermittent
or reduced schedule leave to care for a family member
includes both situations where the family member’s condition
is intermittent and “where the employee is only needed
intermittently – such as where other care is normally
available or care responsibilities are shared.” The
proposed regulations further state that employees must make
a “reasonable effort” (as opposed to an “attempt”) to
schedule intermittent or reduced schedule leave, which is
hardly a coup d'état for employers.
And The Obvious
The proposed regulations further
provide (albeit in government-speak expressions of the obvious)
“As soon as practicable” for purposes of providing notice of
the need for unforeseen or other applicable FMLA leave means
“as soon as both possible and practical. . . .For example,
where an employee learns during the work day on Monday that
a scheduled doctor’s appointment has been rescheduled. . .it
would ordinarily be practicable for the employee to provide
notice. . .before the end of the work day” or the next
business day “if the employee did not learn of the change. .
.until after work hours.”
Employees have “an obligation to respond to an employer’s
questions designed to determine whether an absence is
potentially non-FMLA qualifying.”
Calling in “sick”, without providing more information, does
not constitute sufficient employee notice under the Act.
A medical certification “is considered incomplete if. . .one
or more of the applicable entries have not been completed.”
“A medical certification that is not returned to the
employer. . .constitutes a failure to provide
Indeed, from an employer’s
perspective, there are more than enough disappointments in the
proposed rules to go around. However, on the bright side, employers
can provide comments to the DOL regarding any FMLA regulatory
concerns during the 60-day comment period, some of which the DOL may
still take to heart.