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The United States Department of Labor (DOL) has recently issued proposed rules regarding several areas of the Family Medical Leave Act (FMLA), including the terms (i) serious health condition; (ii) intermittent leave; and (iii) medical certifications. A summary of proposed rule changes for those terms and other proposed changes are set forth below.

As to the term "serious health condition," the DOL proposal would clarify the terms "continuing treatment" and "periodic visit" under §825.113 and §825.115 of the FMLA. "Continuing treatment" would mean two visits within 30 days of incapacity and "periodic visit" would mean seeing a doctor at least twice per year regarding the condition.

As to the term "intermittent leave," the DOL is proposing no change to the current regulation, which allows employees to take leave in the smallest increment of time permitted under the employer’s timekeeping system. Employees must provide notice as soon as practicable, meaning feasible under the circumstances, and must follow the employer’s workplace call-in procedures if they want to take unscheduled, intermittent leave, except when extraordinary circumstances exist, such as when the employee or a covered family member needs emergency treatment.

As to the term "medical certification," the DOL has proposed that §825.115 will be re-numbered as §825.123 and will clarify that employers may provide a statement of the employee’s essential job functions to the employee’s health care provider. The proposed change also would require that the medical certification specify what functions the employee cannot perform and will make clear that physician assistants (PAs) qualify as authorized health care providers for FMLA purposes. §825.305(c) would also be modified to indicate that employers should request medical certification within five business days of receiving notice from an employee of a need for such leave (modified from two days currently). Additionally, when an employer determines that a medical certification is incomplete or insufficient, the employer must state in writing what additional information is necessary and give the employee seven calendar days to cure the deficiency.

Employers would be allowed to directly contact the employee’s doctor to obtain clarification or authentication of the medical certification provided by the employee. Currently, such communications are only allowed between a medical provider who works for the employer and the employee’s medical provider. Because of HIPAA, the employee’s medical provider will need the permission of the patient to talk to the employer, but an employee’s failure or refusal to grant such permission could be seen as a failure to provide proper certification. The proposal also clarifies how often an employer may require re-certification of an employee’s serious health condition -- if condition lasts more than a year, re-certification may be required annually, but for conditions described as "lifetime" or "unknown," re-certification may be requested at least every six months in conjunction with an absence.

In addition to the above, the DOL has made several additional proposals, which are summarized as follows:

(1) clarifying the treatment of "Professional Employer Organizations" (those that contract with employers merely to perform administrative functions, such as payroll, benefits, regulatory paperwork and updating employment policies). Such organizations would NOT be treated as joint employers so long as they (a) have no right to exercise control over the activities of the client’s employees; (b) do not have the right to hire, fire or supervise the client’s employees; and (c) do not benefit from the work the client’s employees perform;

(2) regarding the definition of "eligible employee" under §825.110, the proposal would clarify that, while an employee need not have 12 consecutive months of employment to be eligible for FMLA leave, employment prior to a five-year break in service need not be counted in determining whether an employee is eligible for FMLA leave; however, employers may count such prior service, if they so choose; there are specified exceptions to this rule where the break in service is subject to a written agreement between the employer and employee which addresses the employer’s intent to re-hire the employee;

(3)§825.110(c) would be modified to bring the current regulation’s language into compliance with the Supreme Court’s ruling in Ragsdale Wolverine World Wide, Inc., 535 U.S. 81 (2002) (which invalidated the DOL regulation that would deem an otherwise ineligible employee eligible for FMLA leave based on the employer’s failure to prospectively designate leave as FMLA-qualifying and/or to give proper notice of the FMLA leave designation to the employee);

(4) under §825.121(a)(4), where spouses work for the same employer, both may take their full 12-weeks of FMLA leave to care for an adopted or foster child with a serious health condition;

(6) regarding §825.207 on substitution of paid leave, the proposal would combine the current paragraphs (a), (b) and (c) into one paragraph (a), which would clearly state that the terms and conditions of an employer’s paid leave policies apply and must be followed by the employee in order to substitute any available paid leave for FMLA-qualifying leave;

(7)regarding perfect attendance awards/bonuses, a bonus or other payment that is based on the achievement of a specified goal, such as hours worked or perfect attendance, if an employee has not met the goal because he/she was off work on FMLA-qualifying leave, may be denied, unless such awards/bonuses are paid to employees on equivalent non-FMLA leave status;

(8) regarding "fitness for duty" requirements under §825.310, the proposal would allow employers to send an employee’s absence schedule to the employee’s health care provider and to ask whether or not the employee’s pattern of intermittent leave use is congruent with the employee’s qualifying medical condition; under the proposal, the fitness-for-duty certification may be similar to the initial medical certification of the FMLA leave; also, employer’s will be permitted to request a fitness-for-duty certification every 30 days, if the employee has used intermittent leave during the period and if reasonable safety concerns exist;

(9) the proposal reiterates the FMLA’s waiver provisions (allowing retroactive waiver of FMLA rights, but not prospective waiver of rights), and states that the DOL does not have to supervise such waivers;

(10) clarifying that workers on "light duty" after returning from FMLA leave should not have that time count in calculating the 12-weeks of unpaid leave.

We will keep a close eye on these proposals. In the meantime, if you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.