On Feb. 11, 2008, the U.S. Labor Department published proposed regulations interpreting the FMLA of 1993. The department also published new draft forms for use in processing FMLA leave requests. Interested parties have until April 11, 2008, to submit comments on the proposed regulations. In addition, Congress is conducting hearings on the proposed changes. The Labor Department expects to release final regulations before President Bush leaves office.

The FMLA gives certain workers the right to take up to 12 weeks of unpaid leave every 12 months for qualifying conditions such as a serious health condition, the birth or adoption of a child or to care for a family member with a serious health condition.

Earlier this year, Congress amended the FMLA to provide two new types of leave for the families of members of the armed forces, including 26 weeks of leave for families of service members seriously injured in the line of duty, and 12 weeks of leave for “qualifying exigencies” arising from a call to active duty.

According to the Labor Department, more than 95 million employees work for firms covered by the FMLA. In 2005, over 77 million workers were eligible for leave. More than 7 million took FMLA leave, with more than 1 million taking intermittent leave.

Major changes ahead

The proposed regulations address two major areas: (1) problems created by the first set of regulations and (2) how to comply with the new FMLA amendments for military leave recently enacted by Congress. Some of the more significant changes include:

Employer notices and rights: Employers will be required to provide employees with annual notice of their FMLA rights, if FMLA information is not already in a handbook. Employers will have five days, rather than two, to respond to employees’ leave requests with eligibility and designation notices.

Employee notices and rights: The proposed regulations are more explicit that employees will be required to follow the employer’s usual call-in procedures if they are going to be absent, except in unusual circumstances.

Serious health condition: The proposed regulations continue to set forth a number of different ways to meet the definition of a “serious health condition.” The 10th Circuit, which has jurisdiction over Colorado employers, previously interpreted one of the alternatives based on “continuing treatment” to require two visits to a health care provider within a period of incapacity lasting at least three days. (Jones v. Denver Public Schools, 427 F.3d 1315, 10th Cir., 2005) The proposed regulations would “overrule” this decision, because they state the two visits must occur within 30 days of the period of incapacity. Also, for chronic conditions, “periodic visits” to a health care provider must occur at least twice per year.

Medical certifications: If an employer determines that a medical certification is incomplete or insufficient, the employer will be required to specify in writing what information is missing, return the certification to the employee, and allow seven days for the employee to correct the problem. Also, employers will be able to directly contact medical providers to clarify or authenticate certifications, as long as they satisfy the privacy requirements of the HIPAA. Employers will be able to seek annual certifications for long-term conditions. Employers may require that fitness-for-duty or return-to-work certifications address the employee’s ability to perform essential functions of the job, and will be permitted to require fitness-for-duty certifications for intermittent leave if reasonable job-safety concerns exist.

Two new types of leave for families of service members: Effective immediately, family members can take up to 26 weeks (rather than the normal 12 weeks provided by FMLA) in a single year to care for a service member with a serious illness or injury suffered in the line of military duty. A family member can take 12 weeks of leave for a “qualifying exigency” arising out of a service member’s call to active duty. The Labor Department expects to issue regulations defining a “qualifying exigency," which might include issues related to child care, financial arrangements, briefing sessions, send-off and welcome-home events and similar issues resulting from the service member’s absence.

Waivers of FMLA claims: The proposed regulations permit employees to waive FMLA claims as part of releases with employers, but employees cannot prospectively waive FMLA rights. This is a controversial issue, as the 4th Circuit (with jurisdiction over employers in the mid-Atlantic Southeast, but not Colorado) interpreted the FMLA to prohibit waivers unless the Labor Department or a court supervised them.

New forms: The proposed regulations include new draft forms for notices to employees of FMLA rights, eligibility, designation and medical certification.

What employers can do

The Labor Department has set up a web site that includes links to the proposed regulations. Employers also can submit comments to the department through the web site. Go to www.dol.gov/esa/whd/FMLANPRM.htm.

The deadline for comments is April 11, 2008. Therefore, we encourage employers to decide as soon as possible if they wish to submit comments.