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Wednesday, October 29, 2008

New FMLA regulations are on their way

On October 20, the Department of Labor forwarded its final draft of new Family and Medical Leave Act regulations to the Office of Management and Budget for its review. The OMB’s review process could take up to a month, and the OMB is expected to publish the new regulations some time in November.

In February 2008, the DOL proposed new FMLA regulations. It also asked for public comment. It is unknown what comments were received, and what changes, if any, were made to the proposed regulations as a result.

What we do know is that the proposed regulations suggested the following 12 key changes:

Changes to improve employers’ ability to plan and schedule around FMLA leaves:

1. An employee simply calling in sick does would no longer suffice as a request for FMLA leave. This change will greatly improve employers’ ability to plan and schedule around employees’ medical leaves.

2. Employers would be given greater latitude to deny a request for foreseeable leave if an employee do not provide sufficient notice.

3. An employee on intermittent leave for a chronic serious health condition would need to follow an employer’s standard call-in procedures for unscheduled absences. The employee would no longer be able to use intermittent leave and designate it as such after the fact.

Changes to the medical certification process:

4. The current process of employer conditionally designating FMLA leave as such pending the receipt of medical certification would be abolished. Instead, an employer would first advise an employee of his or her general eligibility for FMLA leave, and only approve the leave as FMLA-qualifying after the employee submits all of the required paperwork, including the medical certifications. This is one instance where bifurcating a process into two steps actually simplifies it.

5. Employers would be given more time to issue FMLA notices – five days instead of two – to employees requesting FMLA leave.

6. The DOL’s current medical certification forms would be revised.

7. Employers would be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of once.

8. Employers would be permitted to contact an employee’s healthcare provider directly to seek clarification or additional information about a medical certification, and would 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.

9. Healthcare providers would be able to provide information on the diagnosis of the employee’s health condition on medical certification forms.

Changes to the meaning of “serious health condition”:

10. The meaning of “continuing treatment” under the definition of a serious health condition would be changed to specify that the two required visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity.

Other changes:

11. Employees would have a five-year cap on years of service for FMLA eligibility. This change would eliminate the problem of an employee working for a company for six months, leaving, returning 10 years later, and qualifying for FMLA leave after another six months of employment.

12. For employees that also qualify as disabled under the ADA, employers would be able to suggest reasonable accommodations that could preclude the need for FMLA leave without violating the FMLA.

I’ll have more on these new regulations, including which of the above changes made the final cut, when they are published in final form.

[Hat tip: BLR, c/o The FMLA Blog]

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