The Good, The Bad and The Obvious: DOL Issues New Proposed FMLA Rules

February 22, 2008

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.

The Good

Under the proposed regulations as currently drafted:

  • 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 fitness-for-duty process.
  • A “sufficient medical certification” must specify “what functions of the employee’s position the employee is unable to perform.”
  • 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 efforts.”
  • 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.”

The Bad

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 treatment). 
  • 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) that:

  • “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 certification.”

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.