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Family and Medical Leave: DOL announces proposed changes to FMLA regulations

On February 11, the U.S. Department of Labor (DOL) published a number of proposed changes to the current Family and Medical Leave Act (FMLA) regulations. The proposal affects three primary areas: serious health conditions, intermittent leave, and medical certifications. Read on for a summary of the most pertinent changes. 

Serious health condition and intermittent leave 
The DOL proposal would clarify the terms "continuing treatment" and "periodic visit." Under the proposal, "continuing treatment" means two visits within 30 days of incapacity, and "periodic visit" is defined as seeing a doctor at least twice per year for the condition in question. 

Regarding unscheduled intermittent leave, the DOL has proposed no change to the current regulation that 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. An exception exists for extraordinary circumstances, such as when the employee or a covered family member needs emergency treatment. 

Medical certifications 

The proposed rule changes would require you to request medical certification within five business days of receiving notice from an employee of a need for such leave. Currently, you have just two days. If you determine that a medical certification is incomplete or insufficient, you must state in writing what additional information is necessary and give the employee seven calendar days to cure the deficiency. 

The new regulations also would allow you to contact the employee's doctor directly for clarification or authentication of the medical certification. Under the current regulations, those communications are allowed only between a medical provider that works for the employer and the employee's medical provider. Remember, though, that because of the Health Insurance Portability and Accountability Act, the employee will have to give his medical provider permission to talk to you. If he refuses to do so, it could be seen as a failure to provide proper certification. 

The proposal also clarifies how often you may require recertification of an employee's serious health condition. If the condition lasts more than a year, recertification may be required annually. For conditions described as "lifetime" or "unknown," you may request recertification every six months in connection with an absence. 

Additional proposals 

Professional employer organizations (PEOs). The new regulations have clarified the treatment of PEOs ― that is, entities that contract with employers to perform administrative functions such as payroll, benefits, regulatory paperwork, and updating employment policies. Under the proposal, PEOs will not be treated as joint employers with the employer using their services so long as they don't: 

  • exercise control over the activities of the client's employees;
  • have the right to hire, fire, or supervise the client's employees; or
  • benefit from the work the client's employees perform.

Eligible employee. The proposal clarifies that an employee doesn't have to have 12consecutive months of employment to be eligible for FMLA leave. Furthermore, you don't have to count (although you can if you choose) employment before a five- year break when determining whether an employee qualifies for FMLA leave. There are exceptions to the rule, however, such as when a break in service is subject to a written agreement between you and the employee that addresses your intent to rehire him. 

The Ragsdale decision. The proposed changes seek to bring the FMLA into compliance with the U.S. Supreme Court's ruling in the Ragsdale Wolverine World Wide, Inc. case. That decision invalidated a DOL regulation that deemed an otherwise ineligible employee eligible for FMLA leave based on the employer's failure toprospectively designate leave as FMLA-qualifying and/or to give proper notice of theFMLA leave designation to the employee. 

Spouses and same employer. Included in the proposal is a rule that would allow spouses working for the same employer to each take their full 12 weeks of FMLA leave to care for an adopted or foster child with a serious health condition. 

Substitution of paid leave. The terms and conditions of an employer's paid- leave policies apply and must be followed by employees seeking to substitute any available paid leave for FMLA-qualifying leave. That means an employee may elect to use accrued paid vacation, personal leave, or paid time off concurrently with FMLA leave so long as he has met the terms and conditions of his employer's paid-leave policy. 

Perfect attendance awards. Many employers provide bonuses or other payment based on the achievement of a specified goal, such as hours worked or perfect attendance. The proposed regulations allow you to deny such an award to an employee who takes FMLA leave (and is thus absent) so long as you treat employees taking non-FMLA leave in the same manner. 

Fitness-for-duty requirements. The proposed rule changes would allow you to send an employee's proposed absence schedule to his health care provider to confirm whether the pattern of intermittent leave is congruent with the qualifying medical condition. Under the proposal, the fitness-for-duty certification may be similar to the initial medical certification for FMLA leave. You can request a fitness-for- duty certification every 30 days if the employee has used intermittent leave during the period and reasonable safety concerns exist. 

Some workers will inevitably be assigned "light duty" work upon return from FMLAleave. Light-duty work doesn't count against an employee's FMLA leave entitlement. In other words, you can't use that time when calculating his 12 weeks of unpaid leave. 

Final note 

Public comments on the proposed changes may be submitted to the DOL through April 11, 2008. After that, a final rule will be issued. We will keep you apprised of future developments as they occur. 

Learn all you need to know about the new FMLA regs by listening to the audio conference "DOL's New Proposed FMLA Regs Explained." To order a CD or for more information, contact customer service at (800) 274-6774.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department. 

Copyright 2008 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

  • Benjamin J. Evans

    Ben concentrates his practice in employee benefits law, including qualified retirement plans, employee welfare benefit plans, nonqualified deferred compensation arrangements, COBRA, and ERISA-related litigation. Ben also ...



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