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Proposed Amendments to FMLA Regulations Published;
Comments Due By April 11, 2008
February 18, 2008
On February 11, 2008, the Department of Labor ("DOL") published new proposed regulations interpreting the Family and Medical Leave Act of 1993 ("FMLA"), including new draft forms for use in processing FMLA leave requests. Interested parties have until April 11, 2008 to submit comments on the proposed regulations. The DOL 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 service members in the armed forces.
The new proposed regulations are designed to solve problems that have arisen since the first set of regulations were published in 1995, and to address issues arising from the new amendments for military service members. Some of the more significant changes include:
Employer Notices and Rights: Employers will be required to send out an annual notice to employees of their FMLA rights. Employers will have five days, rather than two, to respond to leave requests with eligibility and designation notices.
Employee Notices and Rights: 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 overturn a Tenth Circuit decision that required two visits to a health care provider within the period of incapacity; instead, the proposed regulations provide that 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 HIPAA privacy requirements are satisfied. 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 military service member with a serious illness or injury incurred in the line of duty. A family member can take 12 weeks of leave for a "qualifying exigency" arising out of a call up to active duty. The DOL expects to issue regulations defining a "qualifying exigency" to include issues related to childcare, financial arrangements, briefing sessions, "send-off" and "welcome home" events, and similar issues resulting from the service member's absence.
New Forms: The proposed regulations include new draft forms for notices to employees of FMLA rights, eligibility, designation, and medical certification. Copies of the proposed forms can be found here.
The following link is to the DOL website dedicated to these proposed regulations, which includes links to the full text of the proposed regulations as well as to the Federal rulemaking Portal, through which comments can be submitted: http://www.dol.gov/esa/whd/FMLANPRM.htm.
Sherman & Howard encourages employers to take advantage of this opportunity to provide comments on the proposed regulations. To facilitate this, the Firm's Labor and Employment Practice Group has assembled a team of five attorneys with significant FMLA experience to provide assistance to employers in drafting comments and in submitting them to the DOL.
If you are interested in submitting a comment to the DOL and would like assistance in doing so, please contact one of these five Sherman & Howard attorneys listed below. Alternatively, if you are interested in Sherman & Howard submitting comments on your behalf under its name, please inform one of these attorneys or any of the other Labor & Employment Law attorneys, who will coordinate with this team.
Edward J. Butler - 719.448.4052 - ebutler@shermanhoward.com
Patrick J. Miller - 303.299.8354 - pmiller@shermanhoward.com
Glenn H. Schlabs - 719.448.4018 - gschlabs@shermanhoward.com
Heather F. Vickles - 303.299.8194 - hvickles@shermanhoward.com
Andrew W. Volin - 303.299.8268 - avolin@shermanhoward.com
Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.
© 2008 Sherman & Howard L.L.C. February 18, 2008