Labor Department Proposes New, Sweeping Changes to Family and Medical Leave Act Rules
March 1, 2008
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2008
After years of delay, the U.S. Department of Labor (DOL) on February 11, 2008 finally proposed a number of significant and wide-ranging changes to the Family and Medical Leave Act (FMLA) regulations, many of which could substantially alter the procedures employers utilize in complying with the 15-year-old law.
The DOL’s proposed changes are not yet in effect. Instead, the DOL has invited comments on its proposed changes and intends to issue revised regulations later this year. Some of the key changes proposed by the DOL include:
Employee Notice of Foreseeable Leave – Under the proposed rules, when an employee gives less than 30 days’ advance notice of FMLA leave, the employee would be required to respond to a request from the employer and explain why it was not practicable to give 30 days’ notice. For example, if an employee could have provided two weeks notice of a doctor’s appointment for treatment of a serious health condition, but instead provided only one week’s notice of the appointment, the employer could delay FMLA-protected leave for one week. If the employee does not delay the taking of the leave, the absence would be unprotected and the employer could treat the absence in the same manner as any unexcused absence.
Employee Notice of Unforeseen Leave – Under the proposed rules, employees – in all but the most extraordinary circumstances – would be required to: (1) provide notice to their employer of the need for leave at least prior to the start of their shift; (2) comply with the employer’s usual procedures for calling in and requesting unforeseeable leave (e.g. to call a designated call-in number instead of leaving a message on the supervisor’s voicemail); and (3) provide the employer with "sufficient information" to put the employer on notice that the absence may be FMLA-protected. Significantly, calling in with the simple statement that the employee or the employee’s family member is "sick" – without providing more information – would not be considered sufficient notice.
Serious Health Condition – The definition of "serious health condition" largely remains unchanged in the proposed rules, except in a few important respects. The “continuing treatment” requirement would be broadened to specify that the required "two visits" to a health care provider could occur within a 30-day period, instead of during the 3-day period of incapacity required by a Tenth Circuit decision. Also, an employee seeking FMLA leave due to a "chronic" condition would be required to visit their health care provider at least twice a year. The DOL also emphasized that "incapacity due to pregnancy or prenatal care" includes time spent with a health care provider for prenatal care purposes, and includes periods where a male employee is needed to care for his pregnant spouse who has severe morning sickness.
Intermittent Leave – Despite urging from employers, the DOL did not propose any change with respect to the minimum increment of intermittent leave that can be requested or used by employees. The DOL did clarify that an employee who takes intermittent leave when medically necessary has a statutory obligation to make a "reasonable effort" as opposed to an “attempt” to schedule leave so as not to disrupt unduly the employer’s operations.
Employer Notices – The DOL has proposed a number of new "notice" obligations on employers, including: (1) a "General Notice" that must be posted and included in employee handbooks or distributed to employees annually; (2) an "Eligibility Notice" that must be issued within five business days after an employee requests leave (and which notifies the employee of his or her FMLA eligibility and whether he or she still has leave available in the applicable 12-month period); and (3) a "Designation Notice" that must be issued within five business days (instead of the current two) and which designates the leave as either FMLA or non-FMLA leave. The DOL has developed draft prototype forms for each of these notices.
Medical Certification – The DOL has proposed a number of changes to the medical certification form, including a new provision that would require a health care provider to "certify" that intermittent or reduced schedule leave is "medically necessary." The DOL is still considering whether to require employers to notify the employee if the certification has not been returned in the 15-day time period, and to give the employee another seven calendar days to provide the certification.
Recertifications – Generally, an employer could continue to request a recertification no more often than every 30 days and only in connection with the absence of the employee. However, proposed changes would permit recertifications in less than 30 days, or twice a year, in certain circumstances. Also, the proposed regulations would specifically permit an employer to provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.
Authenticating and Clarifying Medical Certifications – The proposed rules would remove the requirement that an employee must provide consent prior to the employer seeking to authenticate a medical certification. Moreover, (unlike the current rule) employers would be allowed to directly contact the employee’s health care provider for the purposes of authenticating and clarifying the medical certification. And, while employee consent (due to HIPAA) is required before an employer can contact a health care provider to clarify a medical certification, the proposed rule makes clear that if such consent is not given an employee may jeopardize his or her FMLA rights.
Fitness for Duty – The proposed rules replaces the requirement that employees who take FMLA leave provide a “simple statement” from their health care provider that they are able to resume work, and replaces it with a requirement that the employee obtain a certification from his or her health care provider. An employer may provide a list of the employee’s essential job duties and require the employee’s health care provider to certify that the employee can perform them, prior to allowing the employee to return to work.
Substitution of Paid Leave – The DOL has clarified that the terms and conditions of an employer’s paid leave policies apply (e.g., paid in only full-day increments, two-day notice required, etc.) and must be followed by the employee in order to substitute any form of accrued paid leave – including paid vacation, personal leave, family leave, paid time off, or sick leave.
Perfect Attendance Bonus – In a significant change, the DOL has proposed to change the FMLA rules to allow an employer to disqualify an employee from a bonus or other payment that is based on the achievement or a specified goal such as hours worked, products sold or perfect attendance, if the employee has not met the goal due to FMLA leave.
Holidays, Overtime, Light Duty – The proposed rules also clarify when holidays and overtime count – or do not count – as FMLA leave, and clarify that periods of light duty are not included as FMLA leave.
Settlement of Past FMLA Claims – The DOL explicitly proposed that employees and employers be permitted to voluntarily agree to the settlement of past FMLA claims without having to first obtain the permission of the DOL or a court.
Injured Service Member – The proposed rules also address recently enacted legislation that expands the FMLA entitlement to 26 workweeks for certain military family members caring for a service member with a serious illness.
Bottom Line – According to the DOL, over six million workers take FMLA leave annually (including 1.5 million workers who take intermittent leave), and employers spend over 9.5 million hours to comply with the law, at a total cost of nearly a quarter billion dollars a year.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
|
Kansas City, MO 1201 Walnut St. Suite 2900 Kansas City, MO 64106 816.842.8600 |
St. Louis, MO Downtown 100 South 4th St. Suite 700 St. Louis, MO 63102 314.259.4500 |
Omaha, NE 1299 Farnam St. Suite 1501 Omaha, NE 68102 402.342.1700 |
|
|
Overland Park, KS 12 Corporate Woods 10975 Benson, Suite 550 Overland Park, KS 66210 913.451.8600 |
Clayton 168 N. Meramec, 4th Floor St. Louis, MO 63105 314.863.0800 |
Phoenix, AZ 1850 N. Central Ave. Suite 2100 Phoenix, AZ 85004 602.279.1600 |
|
|
Wichita, KS 150 North Main Suite 600 Wichita, KS 67202 316.265.8800 |
Jefferson City, MO 230 W. McCarty St. Jefferson, City, MO 65101 573.636.6263 |
Washington, D.C. 1150 18th St., N.W. Suite 800 Washington, D.C. 20036 202.785.9100 |
|
| www.stinson.com | www.lawatwork.com | ||
