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USDOL Issues Proposed

New FMLA Regs


Numerous items

are addressed


Public has until

4/11/08 to comment


    The U.S. Department of Labor’s proposed revisions to its FMLA regulations include significant changes in the way you as employers administer this frequently complicated law. 

     Let us begin with eligibility.  The DOL proposes that you count an employee’s prior service toward the 12-month eligibility requirement provided the employee’s break in service did not exceed five years.  But the DOL also came up with carve-outs: the five year rule would be inapplicable to certain leaves: military service or approved leaves.

    On a second eligibility issue, the DOL proposes that employers who are nice to relatively recent hires but count time against them will be barred from this practice.  Specifically, the DOL is saying no to the employer that allows employees who fall short of the 12 months of service requirement, then give them FMLA time off anyway, but then apply the time they were shy of the 12 months against the 12 weeks of leave.  In the proposed regulations, an employer would not be able to do this, and would have to permit the individual to take off the full 12 weeks.

     Turning to conditions justifying leave, the DOL has accepted what the Seventh Circuit has said in so many words:  common ailments such as the flu, a minor ulcer, an upset stomach, even headaches (less that migraine in seriousness) can constitute a “serious health condition.”  Note that an employee nevertheless, in our view, would have to show that a combination of numerous otherwise common ailments brought the condition within the definition.

     Employer groups had questioned the continued allowance of FMLA for “self-treatment,” citing the dubious nature of conditions never requiring a doctor’s visits and notes.  The DOL is refusing to budge, using the example of an asthma victim who must remain confined to the indoors during high-pollen days and therefore is restricted from going to see a doctor for a note.

     Now as to the leave itself.  When going over these proposals, one finds one’s self both on a tour of everyone’s favorite HR pains in the neck, in the leave context --- and on a tour of twists in the Family and Medical Leave Act that one may never have considered until now.  This is demonstrated by a survey of the DOL take on interim leave.

     In the comments submitted to the Department of Labor no single issue received as much as attention from the employer community as this one.  Although employer groups had stood up to be counted on the interim leave problems – particularly the administrative tedium of tracking short increments of leave – the DOL is offering no change.  There would be no increase in the size of the minimum incremental leave time unit.  Hence as laborious as hour by hour FMLA leave administration can be, it in all likelihood will remain an option for your employees.

     The good news on the leave front is that the DOL is actually willing to permit employers who administer attendance bonus programs to disqualify workers who fail to meet the goal of the program because of FMLA leave.  Note such a plan must specifically measure eligibility based on hours worked, products sold, or perfect attendance.

     Another more positive development is the DOL suggestion that employees not merely make an “attempt” to avoid disruption of the employer’s operations when taking intermittent leave, but “make a reasonable effort.”   Two related items: an employee would be charged an entire week of FMLA leave even if during this week the employer is closed for a holiday, and an employee would have missed overtime counted against his FMLA leave “if the employee would otherwise be required to report for duty but for the taking of FMLA leave.” 

     As of now the FMLA regulations permit employees to follow an employer’s leave policies, even if they are more lenient than those required by the statute – and this has been applied to situations where the employer switches gears and wants to hold the employee’s feet to the fire on leave procedure.  The regs bar employers from doing this.  But in the proposed regs would omit this provision, giving employers the green light to impose certification and notice of leave requirements by the letter of the law.

     Under the proposed regulations employees may decline on offer of light duty or other alternative duty within medical restrictions and remain on FMLA leave.                          

    How you notify your employees of their FMLA rights is legally important, and the DOL says you can satisfy your obligation electronically.  You just have to make sure all covered individuals have electronic access.  Another shift in the notice department is that you will have to give notice to covered employees at least once annually, via your handbook or by a notice of rights to each employee.  The current regs only impose a notice requirement via the handbook and when leave is requested; under the proposal general notice to all and annual notice to each employee will be required.

     In an effort to make sense of notice the DOL has adopted a two-step process using what would be denoted as “eligibility notice” and “designation notice”.  An example might help illustrate how the government envisions these will work:   Mary requests FMLA leave, or you become aware that Mary may be on an-FMLA type leave.   Within five days (current regs say two days) you must provide “eligibility notice” to Mary, in which you advise whether she is eligible (applying the 12 months service and 1,250 hours criteria), and if she is you must inform Mary of her obligation to provide medical certification, and you must address her use of paid time off (and if it is unavailable Mary’s right to take unpaid leave to the extent it is not spent).  You must also advise her of her essential job functions so that her doctor can refer to it for a fitness-for-duty certification.

     The new Eligibility Notice form is attached to the regs and will replace current Form WH-381.

     Once you have enough to go on – you know Mary can take FMLA leave – you would have five days (again, an increase from the present two) to give notice to her that her leave is designated as FMLA leave.  The proposed regs would require you to provide exact quantities (hours, days, weeks) and if the amount required by the employee at first is undetermined, you would have to follow a thirty-day cycle thereafter to notify her of what FMLA leave has been designated and used.

     These proposals are legally significant for a second reason:  if Mary were to demonstrate that you failed to provide her with the required eligibility and designation notices, you could be liable for lost compensation, benefits, reinstatement, lost promotions, etc.

     But the employee would have to required to toe a line also.  Calling in sick would not be enough, and requests would have to be accompanied by sufficient detail to advise you of the reasons for the leave. 

    This takes us to medical certifications:  the DOL heard the word “confusing” loud and clear from the public comments.  The most important item is that, even without Mary’s permission, you can contact her doctor directly to authenticate or clarify a certification, provided Mary is first given a reasonable opportunity to cure deficiencies (see below). To be on the safe side, you need to get HIPAA consent from Mary before you take this step.

    As a result:

     Another important point: you can seek additional information to clarify or explain the employee’s situation – and the proposals particularly provide this – without worrying that you are crossing the “ADA line”.   Where Mary’s serious health condition is at stake you can engage in an interactive process with the employee as if you were in ADA territory.

    Finally, the DOL would expect more from doctor’s who provide fitness-for-duty certifications.  The current “simple statement” requirement would be replaced with a format by which Mary’s doctor applies her essential job functions to her ability to return to work.  And the regs would permit such a certification for returns from intermittent or reduced schedule leave.