The U.S. Labor Department has published proposed
These are the first proposed changes to the existing regulations since the FMLA was passed in 1993. The department is inviting interested parties to comment on the proposed regulations, including the amendments to the FMLA. The deadline for comments is April 11, 2008.
Proposed changes to the existing rules
The Labor Department’s proposal contains an extensive discussion of the existing regulations, offers a number of substantive changes and invites comments on many other provisions. The three areas of greatest concern to employers are: the definition of a serious health condition; the use of unscheduled,
Definition of a “serious health condition”: The Labor Department’s proposed rules modify the definition for “continuing treatment” of a serious health condition that includes a period of incapacity of more than three consecutive days and two or more treatments. Under the proposed rules, the two treatment visits would have to occur within a 30-calendar-day period. (That frequency is currently undefined.) Where a serious health condition involves a period of incapacity due to a chronic condition, the department says an employee would have to see a physician at least twice per year. The existing regulations are vague and undefined.
Clarification on intermittent leave: The proposal does not change the minimum size of an increment of intermittent leave that employees can take. The existing regulations allow an employer to limit intermittent leave increments to the smallest increment of time permitted under an employer’s payroll timekeeping system, as long as it’s one hour or less.
The proposal includes a helpful change that would require employees to follow the employer’s call-in procedures if they want to take unscheduled, intermittent leave, except in emergencies. Currently, employees can take the leave and then designate it as FMLA-qualifying leave within two days of the absence. The proposal restricts such no-calls to true emergencies.
Streamlined medical certification: The proposal makes a major change in the “medical certification” provisions. Employers would be able to contact medical providers directly, and without employees’ consent, to obtain clarification or authentication of documentation. They would still be required to comply with the federal HIPAA.
Under the existing regulations, that communication can be between only a health care provider representing the employer and the employee’s health care provider. Other revisions include allowing a health care provider to disclose diagnosis information on a medical certification. Recertification could be requested every six months and fitness-for-duty certifications would be more rigorous.
No bonus entitlement for FMLA absences: An employer could disqualify an employee from receiving a bonus or award based upon achieving a goal if the employee fails to meet it because of FMLA absences, as long as other employees are treated the same.
Greater notice requirements: The Labor Department would require employers to annually provide notices to all employees. Employers would have five days (instead of the current two) to notify employees that they are eligible for FMLA leave, and to give FMLA leave designation notice. An employee would be required to comply with the employer’s usual procedures for calling in and requesting leave when the employee’s need for leave is foreseeable.
The Labor Department expects to issue the final regulations before the end of the Bush administration. The final rule on the new militarywill contain regulatory language based on comments received during the review process.
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