• Labor Department Proposes New FMLA Regulations
  • March 14, 2008 | Author: Steven R. Anderson
  • Law Firm: Faegre & Benson LLP - Minneapolis Office
  • On February 11, 2008, the U.S. Department of Labor published proposed revisions to the Family and Medical Leave Act (FMLA) regulations. These regulations address a number of critical topics, including, but not limited to, eligibility requirements, the effect of an early start to a leave, the definition of “periodic” doctor visits to determine whether a condition is “chronic,” substance abuse, intermittent leave, substitution of paid leave, the effect of leave on bonuses, waivers of FMLA rights, employers’ responses to requests for leave, employees' notice obligations, and certification by health care providers. The proposed regulations do not address the January 2008 amendments to the Act that created FMLA rights with respect to employees’ family members who are in military service.

    The Labor Department will accept comments on the proposed new regulations until April 11, 2008. Final regulations will be issued after the comment period closes. The Labor Department’s announcement of the revised regulations also asks for comments about what should be included in the regulations that will be issued under the military service members amendments to the Act.

    Although the proposal presents an extensive rewrite of the existing regulations, many of the changes merely clarify current practice. However, the following are some of the significant provisions of the proposed new regulations:

    Eligibility. In most cases, employment prior to a break in service of five years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months. There are exceptions for breaks in service caused by military service or covered by a collective bargaining agreement. In determining whether the employee has worked 1,250 hours in the 12 months preceding the leave request, the employee must be credited with hours of service that would have been performed but for the employee’s being in military service.

    Effect of Early Start to Leave. If an employer allows an employee to take or commence a leave before the employee qualifies for FMLA leave, the pre-qualification leave does not count toward the 12 weeks of FMLA leave. For example, a new employee who is given a leave of absence four weeks before meeting the FMLA eligibility requirements could still get twelve weeks of FMLA leave after the eligibility requirements are met, for a total of sixteen weeks leave.

    Periodic Doctor Visits for Chronic Conditions. The current definition of a chronic serious health condition requires periodic visits to a health care provider for treatment, without defining “periodic.” The proposed regulation defines the term “periodic” as twice or more a year.

    Substance Abuse. The proposed regulations clarify that employers may enforce policies calling for employment termination in the case of substance abuse even if the employee takes FMLA leave for substance abuse treatment.

    Intermittent Leave. Even though the Labor Department’s announcement noted that no topic generated more comments than unscheduled use of intermittent leave, the proposed regulations do little to help employers deal with the problems caused by such leave. The existing provision which says that employees needing intermittent leave or reduced-schedule leave “must attempt to schedule their leave so as not to disrupt the employer’s operations” is changed to “must make a reasonable effort to schedule leave so as not to disrupt unduly the employer’s operations.” The Labor Department is asking for additional suggestions on this topic.

    Substitution of Paid Leave. Where paid leave is to be substituted for unpaid FMLA leave, the employer must clearly inform the employee of the procedural requirements for obtaining paid leave and make clear that meeting those requirements is necessary only in connection with the paid leave, not the unpaid FMLA leave. The employer and the employee may agree to have paid leave supplement temporary disability benefits, such as in the case where a short-term disability plan provides replacement for only two-thirds of the employee’s salary.

    Bonuses. If a bonus is based on the achievement of a specific goal such as hours worked, products sold, or perfect attendance and the employee has not met that goal due to an FMLA leave, the payment may be denied unless it would be paid to employees who were on an equivalent non-FMLA leave. This is a change from existing regulations, which require that a perfect attendance bonus be paid despite an FMLA leave.

    Waivers of FMLA Rights. In response to court decisions interpreting the existing regulation to say that employees may not settle FMLA claims, the proposed regulation clarifies that the prohibition on waiving FMLA rights applies only to prospective rights and does not prevent the settlement of past FMLA claims by employees without the approval of the Labor Department or a court.

    Notices. The FMLA general notice poster may be electronically posted so long as the electronic posting is accessible to applicants and employees. If the posting is maintained only electronically, all employees must have access to a company computer. Employers who have an employee handbook must continue to include FMLA information in it. Those who do not have a handbook must distribute a copy of a notice of FMLA rights to each employee at least annually. The proposed regulations include a new poster and notice of rights.

    Response to Requests for Leave. In response to requests for FMLA leave, employers must give first an eligibility notice and then a designation notice. The FMLA notice must be given within five business days of the employer’s learning of the request for FMLA leave and must inform the employee as to whether the employee has met the FMLA eligibility requirements and whether the employee still has FMLA leave available in the current twelve-month period. If the employee is eligible and still has FMLA leave available, the notice must state any requirements, such as obtaining a health care provider’s certification, that the employee must meet. If the employee is not eligible, the notice must state the reason for ineligibility and, if the reason is prior exhaustion of FMLA rights in the current 12 month period, the notice must explain how the FMLA usage was calculated. Once the employer has enough information to determine whether a particular absence actually qualifies for FMLA leave, the employer must notify the employee within five business days that such a determination has been made and state the number of hours, days, or weeks that will count against the FMLA entitlement. If it is not possible to state the amount of time that will be counted, information about the amount of leave used must be provided every 30 days to the employee. Prototype eligibility and designation notices are provided with the proposed regulations.

    Employer’s Failure to Give Notice. The proposed regulations continue to say that the employer’s failure to fulfill the notice requirements may constitute an interference with or restraint or denial of the exercise of an employee’s FMLA rights and that the employer may be liable for compensation and benefits lost by reason of violations. However, the new regulations acknowledge that an employee whose health would not have allowed him or her to return to work even if proper notice had been given may not be able to show that any damages resulted from the employer’s failure to designate.

    Employees' Notice Obligations. If the need for leave is foreseeable, the employer may require compliance with its usual notice and procedural requirements, absent unusual circumstances. If the employee without justification does not comply with the employer’s usual requirements, FMLA-protected leave may be delayed or denied in some cases. A similar rule applies when leave is not foreseeable except that leave may not be denied in the case of emergency medical treatment if circumstances did not allow the employee to contact the employer.

    Certification of Health Care Provider. A new form has been proposed. Unlike the current form, the proposed form would require the doctor to respond “yes” or “no” to a series of questions which evaluate whether a condition meets the criteria that define a serious health condition, allow the doctor to state a diagnosis, require the doctor to confirm that the leave is medically necessary if the leave is needed on an intermittent/reduced schedule basis, and ask the doctor to state the likely frequency with which the condition could recur and the likely duration of the resulting incapacity. The proposed regulations also seek to clarify the employer’s right to contact the health care provider for purposes of clarification and authentication.

    We will continue to study the proposed regulations and will provide additional updates as the amendment process proceeds.