• DOL Seeking To Amend FMLA Regulations
  • February 14, 2008 | Author: Charles J. Mataya
  • Law Firm: Boult, Cummings, Conners & Berry, PLC - Nashville Office
  • In a much anticipated move, the United States Department of Labor (“DOL”) has filed a Notice of Proposed Rulemaking setting out proposed amendments to the Family and Medical Leave Act (“FMLA”) regulations.  The proposed amendments appeared in the Federal Register yesterday, February 11, 2008.  This starts the 60-day “comment” period, within which DOL will receive comments in response to its proposed regulations.  So, comments must be received by DOL on or before April 11, 2008.  The filing includes proposed changes to the existing FMLA regulations, additional regulations intended to clarify the FMLA process, and also proposed regulations implementing the new statutory provisions relating to military family leave.

    If these regulations become effective in the proposed form, the amended regulations will not only reorganize the structure of the topics covered by the regulations, but they also will work substantive changes to, among other things, the definition of a “serious health condition,” and the obligation of an employee to provide notice of the need for FMLA leave.  The proposed regulations also attempt to clarify how FMLA leave relates to several typical employment concepts, including the use of light duty, the earning and payment of overtime, the earning and payment of bonuses, and the substitution of paid leave for FMLA leave.  The proposed rulemaking also addresses the voluntary settlement of claims, and the consequences of an employer’s failure to designate absences as being covered as FMLA leave.  When the amendments become effective they also will work to implement the requirements of the recent statutory amendment allowing for certain military family leave.

    Many of the changes addressed by the proposed rulemaking are actually an attempt to address some of the many court decisions that have considered and accepted or rejected certain of the existing FMLA regulations in various contexts.  As many commentators observed, and many employers learned, the existing regulations are not always clear and easy to apply.  Different courts sometimes read the regulations differently.  Certain regulations, even though seemingly clear as written, were accepted by some courts but rejected by others as being contrary to the plain language of the statute.  The most significant decision invalidated the DOL application of a penalty provision in 29 CFR § 825.700(a), which states, “[i]f an employee takes . . .  leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s entitlement.” The Supreme Court struck this regulation down as being contrary to the FMLA,  See Ragsdale v. Wolverine Worldwide, Inc.  The proposed amendments remove this regulation.

    Whether the proposed regulatory amendments will work to clarify how an employer should deal with some of the most difficult FMLA issues remains an open question.  In drafting the proposed regulations, DOL could draw on the experience of the last 13 years in attempting to clarify an employer’s obligations under the FMLA.  Thus, it is likely that there will be more clarity to some issues.  However, whether DOL actually reached its goal, and also whether DOL’s proposed rulemaking correctly and reasonably apportions the responsibilities, obligations and protections as between employer and employee remains to be seen.  One thing is clear, on some issues DOL simply chose not to attempt any clarification.

    For example, the proposed amendments do not appear to help employers faced with this dilemma of whether to treat a minor ailment, such as a cold, as meeting the serious health condition threshold.  The comments provided with the proposed regulation acknowledge both the uncertainty of whether such conditions were ever intended to be covered under the FMLA and the built-in difficulties faced by employers attempting to manage such issues.  The comments even discuss how DOL has been inconsistent on the issue.

    Section 825.114(c) of the current regulations states that

    [o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease etc are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

    In an early response to an employer’s question about the proper handling of an employee’s request for leave due to the common cold, DOL responded by stating

    [t]he fact that an employee is incapacitated for more than three days, has been treated by a health care provider on at least one occasion which has resulted in a regimen of continuing treatment prescribed by the health care provider does not convert minor illnesses such as the common cold into serious health conditions in the ordinary case (absent complications).

    Wage and Hour Opinion Letter FMLA-S7 (Apr. 7, 1995).  However, more than a year and a half later, DOL reversed its interpretation, stating that Wage and Hour Opinion Letter FMLA-S7 “expresses an incorrect view, being inconsistent with the Department’s established interpretation of qualifying serious health conditions under the FMLA regulations.”  Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996).  DOL further stated that such minor illnesses ordinarily would not be expected to last more than three days, but if they do meet the regulatory criteria for a serious health condition under § 825.114(a), they qualify for FMLA leave.  Given the opportunity to clarify how the FMLA should be applied in such situations, the proposed amendments acknowledge the problems faced by employers, but on this issue, DOL chose to hold to the old language.