DOL Publishes Long-Awaited Proposals to Update FMLA Regulations
By
Steven Bernstein
(Labor Letter, March 2008)
For some time now, business groups have been calling for a substantial overhaul of FMLA regulations that have proven to be unduly vague, cumbersome, and in some cases, completely out of touch with the realities of today’s workplace. It seems that those requests are no longer falling on deaf ears. On February 11th, the Department of Labor took a substantial step toward regulatory reform by publishing a Notice of Proposed Rulemaking in the Federal Register.
Once implemented, the final rules will contain regulatory language based upon comments submitted during the review process. Although a final set of new regulations is still months away, a spokesperson for the administration expressed her desire to implement changes by the end of President Bush’s term. The proposed rules will remain open for public comment through April 11, 2008.
New Regulations Have Been Years in the Making
The proposed rules would represent the first significant update to FMLA regulations that have gone unchanged since their implementation back in 1994. Large segments of the business community have been calling for changes ever since. This movement gained substantial momentum in December of 2006, when the DOL first issued its "Request for Information" on the FMLA. At that time, Fisher & Phillips, LLP was among a large number of groups calling for substantial regulatory reform.
Six months later, the DOL issued an extensive report detailing over 15,000 separate comments. At that time, the most substantial areas of concern revolved around use of unscheduled intermittent leave, employee notice, medical certification, interaction between FMLA and the ADA, and definitions for a serious health condition. Unfortunately, the report stopped short of offering any specific proposals for regulatory change. These proposed rules move us one step closer in that direction.
Proposed Rules Could Provide Substantial Relief
Over the years leading up to the proposed rules, several aspects of FMLA consistently generated controversy, including: 1) the use of unscheduled intermittent leave; 2) the definition of "serious health condition"; and, 3) the medical certification process.
In response to concerns expressed by a number of business groups, including Fisher & Phillips, the DOL is proposing to allow employers to condition use of unscheduled intermittent leave upon compliance with uniform call-in procedures. Fisher and Phillips had also called for a limitation upon use of intermittent leave to four-hour blocks of time. Unfortunately, the proposals would leave intact existing provisions allowing for leave in partial-hour increments.
With regard to serious health conditions involving three consecutive calendar days of incapacity, the proposed rules would make clear that an employee must make two separate visits to a healthcare provider within 30 days of such incapacity. The regulations would also require those employees who allegedly suffer from chronic health conditions to demonstrate that they have seen a physician at least twice per year, as opposed to the "periodic" language that had been utilized before.
The DOL is also proposing a number of changes with regard to the medical certification process, many of which were long overdue. For the past several years, employers have called for more latitude to pursue information beyond the scope of the current certification form. The process has also given rise to confusion among physicians called upon to complete the form, and employees who are compelled to then clarify the information.
Under the proposed rules, employers would be permitted to contact healthcare providers directly for purposes of clarifying or authenticating a certification form. Currently, such communications may only take place between a healthcare provider designated by the employer and the employee’s treating physician. The rules would also allow employers to request annual recertifications for serious health conditions lasting more than a year, and semi-annual recertifications for those conditions vaguely described as "lifetime" or "unknown."
Responding to requests for clarification on the impact of FMLA waivers, the proposed rules reinforce existing provisions allowing for retroactive (but not prospective) waiver of rights, expressly stating that DOL need not supervise such waivers. The proposed rules would address other FMLA provisions that have either been invalidated or challenged in the courts, including sections dealing with joint employment and coordination between dates of leave approval and commencement.
FMLA: The Next Political Football
Perhaps not surprisingly, some Democrats on Capitol Hill are already reacting to the proposed regulatory changes. A pair of Senators lashed out at the provisions during a recent hearing, characterizing them as an attempt to "chip away" at the current framework. Sen. Kennedy (D-Mass) suggested that the rules would impose added burdens upon those workers who genuinely need FMLA leave, while Sen. Dodd (D-Conn) characterized certain proposals as "humiliating" to those who suffer from chronic illness. Sen. Dodd went on to question why "we offer no paid leave as a nation, when the European standard is 10 paid months?"
Although such rhetoric is not unusual in a campaign year, there remains the possibility that the proposed regulations could themselves be jeopardized in the event that they are issued near the end of the administration’s current term. Such "midnight regulations" have been stricken down before on the heels of elections, to the extent they sweep an opposing party into control of both houses of Congress. This is expected to be a hot political issue over the next several months, and it certainly bears watching.
Other FMLA Changes on the Horizon
The year is barely two months old, yet it has already been a busy one for FMLA. This past month, President Bush signed the National Defense Authorization Act into law, providing extended FMLA leave protection to close relatives of uniformed service members. The new law amended FMLA in two key respects, creating entitlements in the form of up to 26 weeks of "caregiver" leave, and additional rights in the form of "active duty" leave. The former provision is already in effect. The latter provision, which provides up to 12 weeks of FMLA-qualifying leave for any "qualifying exigency" arising out of a close family member’s active duty commitment, is not scheduled to take effect until issuance of final regulations due out in the coming weeks.
As we approach the fifteenth anniversary of FMLA’s passage, the story is not likely to end there. Democrats in Congress have already proposed other statutory amendments to FMLA, including a provision that would provide mandatory paid leave for various qualifying reasons. Senators Dodd and Kennedy recently advised an assembled group of reporters that they would continue to push for paid family and medical leave provisions similar to those benefits recently granted to the families of service members. Other proposals on the horizon include extension of statutory coverage to smaller employers and other employee-friendly provisions.
For all of these reasons, the FMLA landscape is an evolving one, and employers should follow these developments closely. If you are interested in learning more about the recent amendments, the proposed regulations, or their potential impact upon current policies and procedures, or if you would like us to comment on them on behalf of your company or trade organization, please contact your Fisher & Phillips attorney.
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