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The DOL's proposed FMLA regulations: What you need to know

By Rob Smith, Ceridian manager of Government Relations

In a recent survey conducted by the Society for Human Resource Management, 86 percent of Americans responded that the Federal and Medical Leave Act (FMLA) "should be re-examined, updated and made applicable to the modern workplace." Since the FMLA was enacted 15 years ago, employers and employees have struggled to comply with their obligations under this unclear, frustrating and outdated law.

The Department of Labor (DOL) must have been listening. In February, the DOL released long-awaited proposed regulations updating FMLA rules. The regulations take into account comments from more than 16,000 employers and other stakeholders. It addresses several inconsistencies between the FMLA law and current DOL regulations that have been the subject of court cases over the past 15 years. According to the DOL, the rules are designed to help mitigate what it calls "increasing friction between employers and employees" brought on by ambiguities in the law and current FMLA rules.

For a more complete examination of issues employers and employers have raised regarding the FMLA, read the June 2007 article: FMLA: Change on the way?

Health in question
The definition of a "serious health condition" is one of the main issues employers struggle with when determining whether an employee qualifies for FMLA leave. The proposed regulations clarify that a "serious health condition" results in incapacity for three consecutive days and necessitates two visits to a health care provider within 30 days. An employee who suffers from an ongoing "chronic serious health condition" is covered by the FMLA as long as that condition requires that they visit a health care provider at least two times each year.

Employers are also allowed to seek a "fitness for duty" certification at the conclusion of an employee's FMLA leave to confirm that the employee is able to perform the duties of their job. Employers may also require this certification for individuals on intermittent leave.

Employer - employee physician contact
The proposed regulations also permit employers to directly contact an employee's health care provider in certain cases to authenticate and/or clarify an employee's medical certification form. Under the current FMLA regulations, employers may only contact an employee's health care provider for FMLA medical certification purposes through a health care provider of the employer's own.

According to the proposed regulations, direct employer - physician contact is permitted after the employer provides the employee with written notice regarding what part of the certification is incomplete and the employee has been given appropriate time to make corrections. Employers must comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy regulations. Employers may not ask for information beyond what is contained in the certification form. Also, while health care providers would be permitted to provide a medical diagnosis as part of the certification, they are not required to share it with the employer.

In addition, employers are permitted to request that employees with ongoing or chronic serious medical conditions complete a new medical certification form each year.

Notice requirements
The proposed regulations also make several changes to employee and employer notice requirements. In addition to posting notices of employees' FMLA rights, employers must provide a notice of the rights in employee handbooks or as a separate notice that is distributed each year.

The regulations require employers to inform employees of their eligibility for FMLA leave within five business days of acquiring knowledge that the leave might be for an FMLA-qualified reason. If an employee's leave is not FMLA-qualified, the employer must provide a notice of why the leave is ineligible. If an employee's leave is found to be qualified for FMLA, the employer is required to designate the leave as FMLA leave within the five-business-day period and provide follow-up designation notices every 30 days if the leave is ongoing. The current FMLA regulations state that employers must make a "timely designation" of leave, so the clarification that "timely" equals five days is significant.

Intermittent leave
For employee notifications, the proposed rules allow employers to require that employees comply with established call-in procedures if they are unable to work. Employers are permitted to require employees who take intermittent FMLA leave to comply with regular call-in procedures, as well.

The DOL chose not to make significant changes to intermittent leave and unscheduled leave rules. These rules are frustrating and expensive for many employers, but the DOL left the door open for employers and others to address this issue through a public comment period. The proposed regulations clarify that employees must make a "reasonable effort" to schedule leave so that it does not disrupt an employers' business. Under current regulations, employees must make an "attempt" to schedule leave.

In most cases, employees must notify employers of unforeseen intermittent leave before the start of a shift or at least on the same day as leave. This represents a striking change from the "two-day" rule now widely understood to apply.

Legal proceedings, vacation and attendance policies
The proposed regulations also allow employers and employees to voluntarily settle FMLA disputes out of court and without seeking approval from the DOL.

Employers can retroactively designate an employee's leave as FMLA leave, as long as it is not detrimental to the employee. This change stems from a 2002 Supreme Court decision. It overturned a portion of the FMLA regulations that prohibited employers from counting absences against an employee's FMLA entitlement if the leave had not been originally designated as FMLA leave.

The DOL clarifies that an employer may apply its established leave rules if an employee chooses to substitute paid vacation or personal leave for FMLA leave. In addition, employers may disqualify employees who have taken FMLA absences for "perfect attendance" bonuses or other attendance-based bonuses or recognition.

New military family leave
The regulations also include directions for implementing a portion of the new military family leave requirements signed into law by the president in January. The law provides two new FMLA expansions:

• Employers must grant 12 weeks of job-protected unpaid leave for an employee who has a "qualified exigency" as a result of a spouse, son, daughter or parent being on active duty or being notified of an approaching order to active duty.
• An employee who is the spouse, son, daughter, parent or next of kin of a covered seriously injured service member is eligible for 26 weeks of unpaid job-protected leave to care for the service member.

The regulations clarify that employers must grant leave under the new provision that provides eligible employees 26 weeks to care for a seriously injured service member effective immediately. However, the DOL did not define the term "qualified exigency" in the first provision, and it has stated that employers will not be required to grant such leave until the term is defined in final regulations. View a detailed overview of the new military leave law.

Good start, but more could be done
The proposed FMLA changes make some useful adjustments. But they also may fall short of the expectations of the 86 percent of Americans who feel that the law should be reexamined and updated for today's workforce. FMLA compliance will remain difficult for employers and employees. It could potentially become more complicated as federal, state and local governments turn closer attention to employee leave. For example, Washington, D.C. recently became the second city in the nation to require employers to provide paid sick leave, and other cities are likely to follow.

The DOL plans to finalize the rules this fall and will accept comments from the public through April 11. Although the proposed regulations do not substantially change the FMLA, the DOL has stated that it will consider amending the rules to include more meaty issues -- such as intermittent leave -- depending on the response it receives during the comment period.

More information
Ceridian recently sponsored a Web forum for Ceridian customers that examined the DOL's proposed rules, the new FMLA military leave requirements and challenges employers face complying with the law. View the recorded Web forum.