Congress and the Department of Labor (DOL) recently took two important actions affecting the Family & Medical Leave Act (FMLA): Congress created special leave rights for military families; and the DOL issued proposed changes to the FMLA regulations aimed at improving some troublesome areas of FMLA administration.
In Part I, we looked at the provision creating special military family leave rights. Today, an overview of the proposed changes.
Open for Public Comment
First, it is important to note that the proposals are in the “notice-and-comment” stage of an open rulemaking process, described as follows:
Public comments are the heart of the public’s ability to participate in the rulemaking process. The agency rulemaking is usually required to consider and publish a written response to all comments. Although high-profile rulemakings may include public hearings, most rulemakings are simply noticed in the Federal Register with a call for written comments by a set deadline.
Holding agencies accountable for objective, fact-based rulemaking requires maintaining a formal record of the facts and analysis behind the rule. Agencies must assemble and make public a rulemaking record that includes all information considered as part of the rulemaking process.
Thus, the Department of Labor (DOL) has published in the Federal Register a Notice of Proposed Rulemaking. It includes proposed changes to the existing FMLA regulations, and also solicits comments about the issues raised by the new military family leave rights, discussed in Part I of this series.
The DOL says: “Commenters are encouraged to submit their comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov until 12:00 midnight April 11, 2008.”
Background on the Proposed Changes
The proposed changes reflect U.S. Supreme Court and lower court cases invalidating portions of the FMLA regulations, discussions with various stakeholders, and the receipt and review of over 15,000 comments in response to previous DOL action.
Previous comments reflected the value of the FMLA to employees, but also concerned “areas where the regulations are not working well, where there is ambiguity in the regulations, and where there is increasing friction between employers and employees as a result.”
The Federal Register document runs over 100 pages, including discussion of comments received by the DOL and reasons for the proposed changes, followed by the revised regulations themselves.
Key Proposed Changes
The DOL summarized the proposed changes in a “fact sheet” and FAQs. The key changes are in the following areas:
- Ragsdale Decision/Penalties — In Ragsdale v. Wolverine World Wide, Inc., Supreme Court invalidated a penalty provision of the regulations that remedied employer’s failure to provide proper notice to employee by allowing employee to take 12 weeks of FMLA leave, even if employee had already received such leave notwithstanding the employer’s technical violation (so was not harmed). Proposal limits remedy for notice violation to “individualized harm” from such violation.
- Light Duty — Proposal clarifies that “‘light duty’ work does not count against an employee’s FMLA leave entitlement, and . . . reinstatement rights are not affected by a light duty assignment.”
- Waiver of Rights — Proposal reinforces DOL’s “longstanding position that employees may voluntarily settle their FMLA claims without court or Department approval,” contrary to recent Fourth Circuit decision interpreting existing regulations. “Prospective waivers of FMLA rights will continue to be prohibited.”
- Serious Health Condition — Proposal rule adds guidance on two terms in existing definition of “serious health condition. First, it provides that “two visits to a health care provider” must occur within 30 days of period of incapacity, not necessarily during incapacity. Second, it defines “periodic visits” for chronic serious health conditions as “at least two visits to a health care provider per year.
- Substitution of Paid Leave — Although FMLA leave is unpaid, employees may take, or employers may require employees to take, any accrued paid leave concurrently with FMLA leave. Proposal applies same requirements to all forms of accrued paid leave, so employee “may elect to utilize accrued paid vacation or personal leave, or paid time off, concurrently with FMLA leave when the employee has met the terms and conditions of the employer’s paid leave policy (as is the case under the current regulations for the substitution of paid sick leave).”
- Perfect Attendance Awards — Addressing unfairness of allowing employee to obtain perfect attendance award although employee was on FMLA leave, proposed change allows employers to deny such award in this situation, as long as it does same with non-FMLA leave.
- Employer Notice Obligations Consolidates all employer notice requirements into “one-stop” section of regulations that: (1) impose increased notice requirements on employers; (2) extend time for employers to send out eligibility and designation notices from two to five business days; and (3) specify that if employer deems medical certification incomplete or insufficient, employer must return it to employee, specify in writing what information is lacking, and then give employee seven calendar days to cure deficiency.
- Employee Notice — “Lack of advance notice for unscheduled absences is one of the biggest disruptions employers point to as an unintended consequence of the current regulations,” so “[t]he proposal provides that in most cases an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence absent unusual circumstances.”
- Medical Certification Process (Content and Clarification) — The proposal “streamlines the medical certification process,” allowing direct contact between employer and health care provider to clarify medical certification form, so long as HIPAA medical privacy requirements are met, updating the optional Form WH-380, and allowing health care providers to provide diagnosis as part of certification.
- Medical Certification Process (Timing) –The proposal allows employers to request recertification each leave year for medical conditions lasting over a year, and at least every six months for absences due to an ongoing, chronic condition.
- Fitness-For-Duty Certifications — The allows an employer to require that such certifications address the employee’s ability to perform the essential job functions, and, where reasonable job safety concerns exist, to require a fitness-for-duty certification before an employee may return to work from intermittent leave.
My first impression is that the most important changes in terms of helping employers better manage FMLA leave are those concerning medical certification and fitness-for-duty exams.
In particular, being able to contact health care providers directly may be quite helpful. Inability to do so has made obtaining useful medical facts needlessly difficult, and, in some cases, allowed doctors wishing to be helpful to their patients to dodge hard issues such as extent and duration of limitations on ability to perform essential job functions.
Sphere: Related Content
on March 24, 2008
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