Jan Hensel

Dinsmore & Shohl LLP
Columbus, OH
www.DinsLaw.com
Jan.Hensel@DinsLaw.com
(614) 227-4267

Jan E. Hensel is a Partner in the Labor and Employment Department and a member of the firm’s Recruiting Committee. Ms. Hensel concentrates her practice in the area of employment law, including state and federal discrimination litigation, drafting and revising policies and procedures, and advising clients in all aspects of employment law issues. Prior to joining the firm, Ms. Hensel served as Chair of the Employment & Workers’ Compensation Practice Group at Buckingham, Doolittle and Burroughs.

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The U.S. Labor Department has announced a Notice of Proposed Rulemaking (NPRM) proposing revisions to the regulations implementing the FMLA.

Furthermore, the National Defense Authorization Act for FY 2008 amended the FMLA to provide leave for eligible employees to care for injured service members and to deal with any “qualifying exigency” arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty.

Some of the changes became effective on passage—that is, on Jan. 28, 2008. Employees now can take FMLA leave to care for a covered service member. However, other provisions providing for FMLA leave due to a qualifying exigency relating to a family member’s call to active duty will not be effective until the Labor Secretary issues regulations defining “qualifying exigencies.”

The NPRM includes a description of the relevant family military leave provisions and seeks comments on subjects and issues that should be considered in the final regulations.

The proposed rules

Although far too extensive to address on one page, some of the important proposed changes to the FMLA regulations are highlighted below.

The two visits to a health care provider required to meet the definition of “continuous treatment” must occur within 30 days of the beginning of the incapacity.

The “periodic” visits to a health care provider required for a chronic health condition must occur at least twice or more a year.

Time spent in a light-duty position for a workers’ compensation injury does not count as FMLA leave.

Employees can voluntarily waive FMLA claims that already have arisen, and thus employers and employees can voluntarily settle past claims without Labor Department approval.

The distinction between an attendance bonus and a performance bonus is clarified. An employer can disqualify an employee from a bonus or award predicated on the achievement of a goal where the employee fails to achieve the goal as a result of an FMLA absence.

Employers that do not include notice of FMLA rights in an employee handbook must distribute a copy of the notice of FMLA rights at least annually.

Once an employee gives notice of the need for leave, the employer must notify the employee whether leave is still available within the 12-month period.

When designating leave as FMLA leave, the employer must inform the employee of the number of hours, days or weeks that will be designated as FMLA leave.

The employer must advise the employee every 30 days that leave has been designated and protected under the FMLA and the amount of leave so designated, if the employee took FMLA leave within that period.

The time period in which an employer must designate the leave as FMLA leave is extended to five days.

Employers may retroactively designate time off as FMLA time. However, employees who are actually harmed by the designation may have a remedy.

If 30 days’ notice is not practicable, notice of foreseeable leave must be given the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after working hours).

The required content of an employee’s notice of need for FMLA is clarified and expanded.

The proposed regulations clarify and refine when an employer can require an employee to follow its usual and customary procedures regarding notice of the need for leave.

To meet their notice obligations, employees must provide notice to their employers of the need for unforeseeable FMLA leave before the start of their shifts in all but the most extraordinary circumstances.

The information needed for complete and sufficient certification is clarified, as are the employer’s obligations if the certification does not meet these requirements. Simply calling in saying that the employee or the family member is “sick” is not sufficient notice of the need for FMLA leave.

An employee’s consent would no longer be required for an employer to contact the health care provider for the purpose of authenticating the certification.

An employer may directly contact an employee’s medical provider to obtain clarification of the certification, as long as it follows the privacy requirements of the HIPAA.

Recertification may be requested every six months in circumstances where the original certification indicates that the condition will last for an extended period of time.

The proposed revisions are extensive. While they address many of the issues that employers have faced in administering the FMLA, many significant issues will be left unresolved if the regulations are implemented as proposed.

The Labor Department is specifically seeking stakeholder commentary on a number of issues, which must be submitted by April 11, 2008. Employers that have significant experience in a variety of FMLA issues, especially those arising when an employee requires unforeseeable, intermittent leave, would be well-advised to review the proposed revisions and submit their comments to the department.

The NPRM is available in its entirety on the Labor Department’s web site at www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf.