U.S. Department of Labor on February 11, 2008 issued proposed revisions to the current FMLA regulations. As proposed, the 100+ pages of changes delete some regulations, consolidate others, significantly change some provisions, while leaving other core issues virtually untouched. The end result is that many of the regulations you have come to know and love have been changed, if only renumbered.
I address a few of the changes below.
Federal Sector Coverage
The DOL proposed to modify 825.109 to confirm a prior understanding that Government Printing Office is covered by Title II of the FMLA, not Title I. The GAO and the Library of Congress continue to be covered by Title I of the FMLA.
The DOL proposes to adopt the holding of the First Circuit in Rucker v. Lee Holding, Co. 471 F.3d. 6 (1st Cir. 2006). In that case, the court held that the time an individual spent as an employee prior to a five-year break in service did not count towards the 12-months of employment eligibility requirement.
The current FMLA regulations, 825.110(b), provide that the 12 months need not be consecutive. Some have interpreted this to mean that all prior employment counts towards the 12 months of employment for FMLA eligibility purposes.
The DOL also proposed two exceptions to the five-year break in service rule: (1) where the break in service is due to an employee's fulfillment of military obligations; and (2) where the employee is on an approved absence or unpaid leave pursuant to a written agreement expressing the employer's intent to rehire the employee.
Serious Health Condition
The DOL has reorganized the structure and language of the current definition of a serious health condition:
- The DOL declined to identify minor illnesses that would never constitute an FMLA-covered serious health condition.
- Where leave involves more than three consecutive days incapacity plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity, with two exceptions. The proposal ends the current open-ended period for an employee to receive medical treatment.
- To constitute a chronic condition, the DOL proposes that "periodic treatment" requires treatment two or more times a year. Currently, "periodic" is not defined by the regulations.
- Leave for treatment for pregnancy, adoption/foster care, and substance abuse are each given their own separate regulations.
Health care providers
The DOL proposes to add Physician Assistants to the list of recognized health care providers without limitation.
Amount of Leave
Whether a holiday occurring during an employee's FMLA leave counts against the employee's FMLA entitlement will depend on the duration of the employee's leave under the DOL's proposed revision to 825.200.
If the employee needs leave for the entire week in which a holiday falls, the hours the employee does not work on the holiday count against the employee's FMLA entitlement. If, however, the employee works a part of the week that a holiday falls, the hours the employee did not work on the holiday do not count against the employee's FMLA leave entitlement if the employee would not otherwise have been required to work on that day.
The DOL proposes to 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 schedule.
The DOL declined to alter the requirement that employers provide intermittent leave in the smallest increment of time the employee uses to record time, which could be a minute or less.
Paid Leave Substitution
The DOL proposes two substantive changes to the current regulations regarding paid leave:
- The DOL clarifies that "substitute" means to run available paid leave concurrently with unpaid FMLA leave. Some courts have interpreted "substitute" to mean in place of, so that the paid leave lost the protections of the FMLA.
- DOL did away with the distinction between paid medical/sick leave and vacation/personal leave in terms of an employer's ability to enforce their normal rules regarding the use of that type of leave. As proposed, an employee must abide by an employer's paid leave policies in order to substitute any form of accrued paid leave for unpaid FMLA leave.
Return to Work & Bonuses
The DOL proposes to drop the distinction in 825.215 between bonuses for job performance and bonuses predicated on the absence of occurrences (e.g., perfect attendance). In its place, the DOL proposes language that provides that an employee who has not met a specified goal due to FMLA leave may be denied the bonus provided similarly situated employees who took non-FMLA leave were also denied the bonus.
The DOL proposed consolidating all employee and employer notice requirements into one section.
Employers may satisfy the FMLA poster requirement by electronic posting on the employer's site provided some conditions are met. The civil penalty for failure to post is increased to $110 for willful violations. The DOL has revised its prototype poster.
The time an employer has to notify an employee that it has designated leave as FMLA-qualifying is increased from two to five business days under the DOL's proposal.
Employees who fail to give at least 30 days advance notice of the need for foreseeable leave may be required to explain why it was not practicable to give 30 days' notice.
Absent emergency situations, the DOL proposes modifying the existing regulations to make it clear that it expects that it will be practicable for an employee to provide notice of the need for foreseeable leave either the same day or the next business day.
Where the need for leave is unforeseen, the DOL proposes to modify the regulations to reflect its expectation that in all but the most extraordinary circumstances, employees will be able to provide notice to their employers of the need for leave at least prior to the start of their shift.
To provide sufficient notice that the leave may be FMLA qualifying, although the employee does not have to mention the FMLA by name, he or she must indicate that the employee is unable to perform the functions of the job, or that a covered family member is unable to participate in regular daily activities, the anticipated duration of the absence, and whether the employee or family member intends to visit a health care provider or is receiving continuing treatment.
Absent unusual circumstances, employee's generally will be required to abide by established call-in procedures for leave, unless the employer's policies allow less time to request leave than the FMLA permits.
The DOL proposed changes to the WH 380 to require more information.
Employers would no longer have to gain the employee's consent to contact the health care provider to authenticate the medical certification.
Employer would, however, still have to gain the permission of the employee prior to contacting the employee's health care provider to clarify the content of the medical certification. The DOL proposes to add language that an employee who refuses such permission may lose jeopardize his or her FMLA rights.
The proposal allows an employee to contact the employee's health care provider directly without having to use a health care provider as an intermediary.
Military Family Leave
The DOL has not issued proposed regulations to implement the new military family leave provisions. Those regulations are expected to be published in the next week or two.
Tell DOL What You Think
DOL wants to hear from you regarding their proposed revisions to the current FMLA regulations. You have until April 11, 2008 to send your comments to the DOL. Directions to submit comments is set forth on the attached link: http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf The link provides you with access to the text of the proposed regulations.
Effect on Other Federal Sector FMLA Variants
If enacted, the DOL proposals will likely provoke the OPM and other regulatory bodies to review their existing FMLA regulations for civil service employees, Congressional employees, and employees of the Executive Office of the President. Remember, the other federal sector statutes directed the enforcing agencies (e.g., OPM, Office of Compliance) to craft FMLA implementing regulations that reflect those issued by the DOL.
Of course, the OPM is not required to make any changes to their existing regulations just because the DOL changes their regulations. Hopefully, however, the OPM will at least use this as an opportunity to explain the many differences between its Title II FMLA regulations and the DOL regulations.
Given that this is a Presidential election year, I expect that the DOL proposed regulations, as well as the new military family leave regulations when they come out, will be the subject of considerable political attention by Congress and the Presidential hopefuls. Stay tuned!