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New FMLA Rules Proposed

On February 11, 2008, the U.S. Department of Labor finally issued new proposed rules for the Family and Medical Leave Act ("FMLA"). These proposed rules do not offer employers as much relief from the FMLA's onerous requirements as many had expected. Although the proposed rules (on which the Department of Labor will receive comments from the public until April 11, 2008) do offer employers help in some areas, they also impose new burdens on employers in other areas. Below is a summary of the proposed rules, which can be accessed here.

Employers' Notice to Employees

Under the proposed rules, employers would still need to post in their workplace a general notice of employees' FMLA rights and obligations. In addition to this, employers would also be required, at least once each year, to provide employees written notice of their FMLA rights. This could be accomplished through an employee handbook, or through paper or electronic form, subject to certain conditions.

Another change is that employers would have five business days (an increase from the current two days) to notify an employee that he/she is eligible for FMLA leave upon receiving a request for leave or after learning that an employee's leave might qualify for FMLA leave.

The new rules would also require employers to provide employees with more specific written notice regarding their use of FMLA leave. An employer would need to notify employees of the number of hours, days or weeks that an employer will designate as FMLA leave. Employers would also need to inform employees if their time off would not constitute FMLA leave due to the employee providing the employer insufficient information or a non-qualifying reason.

Employees' Notice to Employers

Under the current regulations, employees must provide employers 30 days notice of their need to take FMLA leave when the need is foreseeable. If providing 30 days' notice is not possible, the employee must give notice "as soon as practicable". The proposed rules would require employees providing less than 30 days' notice to respond to an employer's request to explain why it was not practicable to give 30 days' notice. If this change is retained in the final rule, this could help employers deal with employees seeking to take FMLA leave without providing sufficient notice.

Medical Certification Requirements

The proposed rules would allow employers to directly contact an employee's health care provider under certain circumstances, an expansion from the current regulations, under which employers can make direct contact with employees' health care providers only in workers' compensation cases. Employers would have five days to request medical certification from the date an employee requests leave. If an employer determines that the subsequent information received is insufficient, the employer must notify the employee in writing of what additional information the employer needs and provide the employee seven calendar days to provide it. The new rules would also change the medical certification form to better assist health care providers in providing the requested medical information.

Employers would also be permitted to directly contact health care providers to clarify or authenticate documents, rather than have to go through another doctor to do so, as under the current regulations. The proposed rules would permit employers to send an employee's absence history to his/her doctor to confirm whether or not the employee's pattern of intermittent leave is consistent with the employee's (or covered family member's) certified medical condition.

Intermittent Leave

Many employers asked the Department of Labor to consider raising the minimum amount of FMLA leave an employee could use intermittently. However, the new rules would leave this area the same as it is under the current regulations. Under the current regulations, employees can take leave in the shortest unit of unpaid time off established under an employer's timekeeping systems (at least one hour).

The current regulations require employees to attempt to schedule intermittent and reduced schedule leaves that are foreseeable in a manner that does not unduly disrupt the employer's operations. Under the proposed rules, employees would be required to "make a reasonable effort" when scheduling leaves to avoid disrupting their employer's operations. This would be a heightened standard for employees to satisfy, but still not as much as many employers had hoped for.

Definition of a Qualifying "Serious Health Condition"

The proposed rules will disappoint employers hoping for a more limited definition of "serious health conditions" for which employees can take FMLA leave. Under the proposed rule, "continuing treatment" for a "serious health condition" would be redefined as a period of incapacity of more than three consecutive calendar days and require that a worker visit a health care provider at least twice within 30 days of being incapacitated. Employees with chronic health conditions would need to make at least two doctor's visits per year for their condition to qualify. These changes would be a slight improvement for employers, but not as much as was hoped.

Common Illnesses

The Department of Labor has refused to heed many employers' request that the regulations exclude common illnesses (such as the common cold, the flu, earaches, upset stomach and headaches) from the definition of a covered "serious health condition". The proposed rules clarify that common ailments can qualify for FMLA leave if they otherwise satisfy the regulatory definition of a "serious health condition".

Calling in "Sick"

Under the proposed rules, if employees seek to take FMLA leave for their own serious health condition, they would need to provide their employer sufficient information indicating that their condition makes them unable to perform the functions of their jobs. Just "calling in sick", without providing more information, would not be considered sufficient notice to trigger an employer's obligations under the FMLA. This would be a positive development for employers, if it is retained in the final rules, because some courts have held that "calling in sick" is enough to put an employer on notice that the employee may qualify for FMLA leave.

Fitness for Duty Issues

Under the current regulations, an employer may not require from a health care provider more than a "simple statement" of an employee's ability to return to work. Under the proposed rules, when requested to do so by an employer, a health care provider must assess the employee's ability to return to work under the essential functions of the employee's position, which would be specified by the employer in a newly proposed eligibility notice to be provided to employees. The proposed rules would also allow an employer to require fitness-for-duty certifications from employees who have taken intermittent or reduced schedule leave. An employer could require fitness-for-duty certification once every thirty days, if an employee has actually used FMLA leave during the thirty-day period and reasonable safety concerns exist. In addition, under the proposed rules, under certain circumstances, an employer would be allowed to directly contact health care providers to clarify or authenticate the fitness-for-duty certification provided to the employer.

Giving Employees FMLA Leave Before Eligibility

Some employers allow their employees to take FMLA leave even if they have not yet achieved 12 months of service. These employers may seek to count this time off towards an employee's 12-week FMLA entitlement, when the employee later reaches the 12-month service mark. Under the proposed rules, this would not be permitted and, in such cases, the employee would be entitled to a full 12 weeks of FMLA leave when they reach the 12-month mark. This would appear to deter employers from providing employees time off prior to their attaining FMLA eligibility. Employers will need to remain careful not to terminate employee's employment to prevent them from taking FMLA leave when they do reach 12 months of service, which could give rise to an FMLA retaliation or interference claim.

Male Employees and Prenatal Care

Although the current regulations do not expressly address the subject, employers have been advised that male employees can qualify for FMLA leave to take their pregnant spouses to the doctor for prenatal care visits. The proposed rules make this explicitly clear, that both pregnant employees and their spouses may take FMLA leave to attend prenatal care appointments. Male employees may also qualify for intermittent FMLA leave to assist their pregnant spouses having severe morning sickness.

Perfect Attendance Awards

One area where the current regulations have greatly bothered some employers is with perfect attendance bonuses and awards. Currently, employers must treat employees as if they were at work, when they in fact are away from work on FMLA leave, for purposes of perfect attendance programs. Under the proposed rules, employers would not have to provide perfect attendance awards to employees who take unpaid leave under the FMLA.

Waivers and Releases of FMLA Claims

Some recent court decisions have held that employees cannot effectively settle and release FMLA claims on their own. The proposed rules would allow employers and employees to voluntarily settle past FMLA claims, without having to obtain permission from a court of law or the Department of Labor.

"Light-Duty Time"

The current regulations allow employers to count the time an employee is on light duty as FMLA leave. The proposed rules would eliminate this provision.

Military Family Leave

The proposed rules seeks public comment on military family leave issues, to be addressed in the final rules. On January 28, 2008, President Bush signed into law amendments to the FMLA to provide family leave to employees to care for family service members who are injured in military operations, and in situations where a family member is called to active duty. Until the final rules are issued, a great deal of uncertainty will remain as to what employers should do in these situations. The proposed rules offer the Department of Labor's initial views on these issues, to which employers might wish to adhere pending release of the final rules.

The DOL has published a poster on military family leave, which can be accessed here.

FMLA Forms

Under the proposed rules, two forms that employers use to administer FMLA leave, the certification of health care provider form and the employer response to employee request for leave form, would be significantly modified, the latter form being replaced with two optional forms. It is possible that these forms will be further modified after the 60-day public comment period on the proposed rules.

All in all, the proposed rules fall far short of what many employers had hoped for. In some areas, the proposed rules would benefit employers, but in others, the proposed rules could be come even more burdensome for employers to comply with than the current, complicated rules. Given the current political climate and forthcoming elections, it would not be surprising if the final rules (when they are issued) are even less favorable to employers than the proposed rules.


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