Monday, February 11, 2008

DOL publishes proposed new FMLA regulations

Weighing in at an astounding 477 pages, the Department of Labor has published its proposed new FMLA regulations. According to the DOL, these regulations will "preserve[] workers' family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace." They seem to be an improvement over the current regime, although they are far from perfect. These regulations are not final, and will be subject to at least a 60-day comment period.

If you don't have the time or the willpower to sift through 477 pages to figure out the impact these regulations will have on your FMLA responsibilities, here are some of the high points:

  • Except in emergency situations, employees will be required to follow the employer's policy for notification of FMLA leave, eliminating employees' ability under the old regulations to take up to 2 days after an absence begins to notify their employer that they intend to take FMLA leave. This change will greatly improve employers' ability to plan and schedule around employees' medical leaves.
  • Employers will be able to directly contact employees' doctors when employers have questions about FMLA medical certification forms that the doctors have filled out. Employers will no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee's doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.
  • To employers' dismay, the regulations do not change the time increments in which employees can take intermittent leave, but do require that an employee using intermittent leave use the employer's regular call in procedure except in emergencies. Thus, employees will still be able to take intermittent leave in very short increments, continuing for employers the administrative nightmare of intermittent leave, albeit with some additional notice.
  • Employers will be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of annually.
  • Currently, the clock under which employees accrue their 12 months of service for eligibility has no time limit, even after multiple breaks of service. Thus, if I work for 6 months for a company, and return 10 years later, I am eligible for FMLA leave after another 6 months. The new regulations place a 5-year cap on years of service for calculating eligibility, except for military or childrearing leaves, or where rehiring is covered by a collective bargaining agreement.

The DOL is also soliciting input on how it should handle the recent FMLA expansion for military-related leaves of absence. For the adventurous, the complete proposed regulations are available for download here.

[Hat tip: Jottings by an Employer's Lawyer].