On April 29, 2009, Congresswomen Carol Shea-Porter (D-NH), along with 24 cosponsors, introduced H.R. 2161, entitled: To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act. Representative Shea-Porter explained that the purpose of H.R. 2132 was to "restore the Family and Medical Leave Act to its original intent and spirit."
The legislation seeks to repeal and restore 825.205(a)(2), 825.207, 825.215, 825.220(d), 825.302, 825.303, 825.307, and 825.312. It also seeks to modify 825.308(b), 825.115(a) & (c), and to revise the medical certification form.
A review of the proposed repeal of the new and restoration of the old follows.
As proposed, the legislation seeks to repeal the following recently revised FMLA regulations and restore the former regulation/standard.
- 825.205(a)(2) Increments of FMLA leave for intermittent or reduced schedule leave
The legislation would rescind all recent changes made to this section. The changes that would be eliminated include an employer's right to designate the entire period an employee is unavailable to work as FMLA leave where physical impossibility prevents the employee from intermittent leave or working a reduced leave schedule from commencing work mid-way through a shift (i.e., railroad conductor needs intermittent leave during middle of a train trip for scheduled medical treatment).
The plus side for the employee is that only the period the employee needs intermittent leave counts against their 12-week entitlement. The downside is the the rest of the time the employee can't do his or her job is not covered by the FMLA and, therefore, may be the subject of discipline. That would not happen under the new DOL regulations.
- 825.207 Substitution of Paid Leave
Reversion of the old regulations would provide some benefits to the employee. It would also create problems.
For example, on the plus employee side, return to the old regulations would prohibit an employer from imposing any of its normal leave policy requirements (notice, documentation) on employees where vacation or personal leave is substituted for FMLA leave. In this respect, the old regulation treats employees who use FMLA leave better than employees who do not use FMLA leave.
The revised regulation also added language defining "substitution" to mean that unpaid FMLA leave runs concurrent with available paid leave. The DOL added this language because there are federal circuit court cases out there that have held that "substitution" means what it says- in place of. That is, the leave is no longer protected by the FMLA and may be subject to discipline. Given the split in the case law interpreting the old regulation, getting rid of the definition of "substitution" does not sound like a big win for employees. Stated differently, how is the "original intent" of the legislation enhanced by the absence of a definition of "substitution?"
The new DOL regulation also allows public employees to substitute compensatory time for unpaid FMLA leave, a move supported by many employee groups. Under the Shea-Porter legislation, gone.
- 825.215 Equivalent Position
Reversion would reinstate the former rule that prohibited employers from denying bonuses to employees who did not satisfy the requirements for a bonus due to FMLA leave usage. As modified, the DOL altered the language to deny bonuses to employees who did not meet a specified goal or perfect attendance due to FMLA leave usage, unless the employer pays a bonus to employees who take, for example, non-FMLA leave.
Obviously, going back would benefit employees who take FMLA leave. However, it recreates the situation that motivated the DOL to change the regulation in the first place: the frustration of employees and employers of giving perfect attendance awards to employees who have been absent for extended periods of time because of FMLA usage while denying awards to employees who have been absent for non-FMLA purposes.
825.220(d) Light Duty & Waiver of Employee FMLA Rights
The DOL modified the language of 825.220(d) to confirm that an employee who elects to work a light duty schedule cannot have the time they worked count against their FMLA leave entitlement. The DOL took this action to address decisions by two federal district courts interpreting the former rule to mean that an employee uses up their 12-week FMLA leave entitlement while performing light duty work. How this his helpful to employees is unclear.
Repeal of the current rule allowing employees to settle FMLA claims based on past conduct would necessarily return the situation to the split between the Fourth And Fifth Circuits on waiver of FMLA rights. In the Fourth Circuit, an employee cannot settle an FMLA case without the involvement of a court or the DOL. Note that the statute does not say that only settlments supervised by the DOL or approved by a court are valid.
Whether you favor the Fourth Circuit's approach really depends on how accepting of paternalism you are.
- 825.302 Employee Notice of Foreseeable Leave
The new regulations deleted language defining "as soon as practicable" as ordinarily meaning one or two business days. DOL deleted the language as confusing. Some employees and employee organizations misinterpreted the language as allowing an employee to provide notice of the need for leave within one or two business days regardless of whether it was practicable for the employee to provide notice sooner. Courts have not been confused. The old and new language basically say the same thing in different ways- employees must notify the employer of the need for leave as soon as practicable, which might be immediately depending on the facts.
Repeal would eliminate the requirement that an employee must explain why they did not provide timely notice of the need for leave that was foreseeable at least 30 days in advance.
825.302 applies the foreseeable need notice provisions to military caregiver leave. The old regulations do not address military caregiver leave. Arguably, repeal of 825.302 would eliminate all military caregiver leave notice requirements. It is unclear how this is helpful to anyone.
Reversion to the former foreseeable notice rules would also eliminate the new rules governing employee notice of the need for qualifying exigency leave. Again, how this is helpful is any ones guess.
- 825.303 Employee Notice of Unforeseeable Leave
The legislation would restore language that notice "as soon as practicable" generally means within one or two business days. DOL deleted the "two-day" rule as confusing. Some employees wrongly believed that they always had two business days to notify the employer of the need for the leave even if it was practicable for the employee to provide notice sooner. Actually, that has never been the rule.
I don't believe that restoration of the old rule is any more reflective of the original intent or spirit of the legislation than the current rule. Both say the same thing, just in different ways. I happen to think the current version states the "as soon as practicable" requirement more clearly than the former version.
The legislation would also repeal the requirement that an employee provide notice of the need for leave that is unforeseeable within the time frame prescribed by the employer's usual and customary notice requirements applicable to such leave.
Repeal would do away with new language indicating that an employee's stating they are "sick" is not adequate notice that the employee needs FMLA-qualifying leave. Given that this requirement basically codifies what the overwhelming majority of courts have held, it is unclear how deletion of this language returns the situation to the original intent and spirit of the law.
Similarly, as revised, the regulation currently provides examples of the type of information an employee may include in order to adequately inform the employer that leave may be FMLA-qualifying. Given that the adequacy of employee notice is one of the most heavily litigated FMLA issues, it is unclear to me why you would want to repeal some good advice on what an employee should consider including in their request for leave to ensure that the employer realizes that the leave is FMLA-qualifying. How does greater ambiguity on what information an employee should include in a request for leave constitute a return to the original intent and spirit of the law?
The legislation would do away with the newly added requirement that an employee must specifically reference either the qualifying reason for leave or the need for FMLA leave where the employee seeks FMLA leave due to a qualifying reason for which the employer has previously approved FMLA leave. The standard codifies existing case law requiring an employee to link their current request for leave to a prior, FMLA-approved condition. Again, what is gained by getting rid of a regulation that codifies the majority interpretation of the old regulation?
- 825.307 Authentication and Clarification of Medical Certification
Under the new regulation, an employer may contact a health care provider directly to confirm that the certification provided by the employee is real, and to clarify the content of the certification.
Employee organizations hated this rule. Repeal would reinstate the former regimen wherein an employer must ask the employee's permission before contacting the health care provider, through another health care provider, to confirm the authenticity or clarify the content of the certification. Asking the employee for permission to determine if the certification is a fraud never made much sense to me.
- 825.312 Fitness for duty certification
Under the old rule, an employer could only require an employee to provide a "simple statement" that the employee was able to return to work.
Under the new regulations, an employer could require the fitness for duty certification address the employee's ability to preform the essential functions of the employee's job as long as the employer provided the employee with a list of the essential functions of the job at the time of the designation notice.
The new rule also allows employers to contact the employee's health care provider directly without the employee's permission to confirm authenticity and to clarify the content of fitness-for-duty certification.
The new rule allows employers to require fitness-for-duty certifications for employees using intermittent leave for their own serious health condition when reasonable safety concerns are present.
Repeal of the new rules would certainly lighten the fitness-for-duty burden on employees.
- 825.115(a) and (c) Incapacity and Treatment Serious Health Condition
The DOL proposes to dramatically change how incapacity plus treatment and chronic serious health conditions are defined. Specifically, the DOL proposes to remove the requirement or a specific number of periodic visits for treatment by a health care provider and to require only the treatment that the health care provider determines proper.
For incapacity plus treatment, the change effectively does away with a period of incapacity of more than three full consecutive calendar days that also involves two health care provider treatments within specified time frames. For a chronic serious health condition, the change would remove the newly installed definition of periodic treatment as at least 2x a year.
Basically, the revision would extend the period an employer may require a recertification from every six months to once a year, provided the original certification indicated that the condition would last more than a year. Otherwise, if the condition was originallyly certified to last for a period of less than a year, the employer has to wait the length of time that the original certification indicated the condition would last. This would undoubtedly ease the financial and hassle of more frequent recertifications somewhat on employees.
Comment: The legislation is no doubt a sincere attempt to right what many employee organizations sincerely believe was a last minute move by the Bush administration to undermine employee FMLA rights. In my opinion, it simply goes too far.
FMLA Camelot did not exist prior to January 16, 2009. The original regulations had many problems. Over the years, courts found several of the regulations to be invalid. Courts interpreted other regulations in unique ways that were not always beneficial to employees. The sheer volume of litigation on certain issues, like the adequacy of employee notice of the need for FMLA leave, should tell any reasonable person that the existing employee notice provisions were less than ideal.
Familiarity is not the same thing as better. The organization of the new rules by broad subject matter is better than the old rules. Updating the rules to reflect the current state of the law does not undermine the original intent and spirit of the rule. Adding examples to illustrate the operation of a rule is not a bad thing. Repealing regulations that include guidance on the new military caregiver and qualifying exigency leave so that no guidance is given to employers and employees is simply ridiculous.
Employee groups undoubtedly have some legitimate beefs that some of the new regulations are overly employer-friendly. The political climate has changed so these groups are in a better position to do something about it. These groups might consider using a scalpel rather than this dull meat cleaver legislation.