Newsletters

Labor & Employment March 2008

EMPLOYERS TAKE NOTE: DEPARTMENT OF LABOR RECENTLY ISSUED PROPOSED CHANGES TO FMLA REGULATIONS

On February 11, 2008, the Department of Labor issued proposed changes to the Family and Medical Leave Act ("FMLA"). Summarized below are several areas that may become law in the near future.

"SERIOUS HEALTH CONDITION"

Before the proposed regulation, to qualify as a serious health condition under the continuing treatment analysis, an employee must be incapacitated for more than three consecutive calendar days, and the employee must seek treatment twice for the medical condition, but there was no time limit on when the employee had to seek treatment. With the proposed regulation, if an employee’s serious health condition falls under the continuing treatment analysis, the employee must seek treatment from a health care provider twice within thirty days. In addition, if the employee seeks to qualify for leave under the FMLA with a chronic condition, the employee must see a health care provider for "periodic visits." The proposed regulations require the "periodic visits" to be twice per year.

Intermittent Leave

Some employers believe that employees are taking advantage of their intermittent leave policies. Currently, the employees can take leave and then designate it as FMLA-qualifying leave within two days of the absence. With the proposed regulation, employers can require their employees to follow the company’s call-in procedures if they want to take unscheduled, intermittent leave. In addition, the employees can only qualify for leave within two days of the absence if the leave was an emergency.

Medical Certification

The medical certification process can oftentimes be very confusing and frustrating for employers. The first major change in the proposed regulations is allowing the employer to contact the employee’s medical providers directly to obtain clarification or authentication of documentation instead of requiring the employer’s health care provider to communicate with the employee’s health care provider. The second major change clarifies how often an employee must re-certify a serious health condition. If the condition lasts for more than a year, an employer could request an annual re-certification. If the condition is for life, the employer may ask for re-certification every six months in conjunction with an absence.

Conclusion

In addition to the information above, the Department of Labor has proposed regulations regarding waiver provisions for FMLA rights; substitution of paid leave; fitness-for duty requirements; and penalty provisions. These proposed regulations, as law, will require substantial revisions to employee handbooks and policies.

The public comment period ends on April 11, 2008. If you would like us to contact the Department of Labor and comment on the proposed rules on your behalf, or if you would like assistance complying with the FMLA or any other labor and employment issue, please feel free to contact any member of our Labor and Employment Law Practice Group. You may also visit our website at www.binghammchale.com to obtain further information about the group and review previous bulletins on various employment-related topics.