On the Horizon: Highlights of Proposed FMLA Changes

Kelli Hill
May 6, 2008 — 1,949 views  
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In addition to the recent military family leave changes to FMLA, employers will be interested in learning about the Department of Labor's decision to update the fifteen-year old regulations in an effort to improve communications among workers, employers, and health care providers.  Below are some of the highlighted proposed changes that will significantly affect employers:

In light of the Ragsdale v. Wolverine Worldwide, Inc., decision, which invalidated the penalty provision of the regulations, the DOL has proposed to remove the penalty and clarified that, where an individual suffers harm because the employer failed to follow the notification rules, the employer may be liable.

Light Duty and FMLA - At least two (2) courts have held that an employee uses his/her 12 week FMLA leave while on a "light duty" assignment. One of the proposed rules clarifies that time spent performing "light duty" work does not count against an employee's FMLA leave and changes the rules so that reinstatement rights are not affected by a light duty assignment. Put simply, if the employee voluntarily performs light duty, the employee is not required to use FMLA leave.

Serious Health Condition Guidance - The DOL proposes a rule that would provide guidance on the definition of a serious health condition. Specifically, the DOL has addressed the form of serious health condition that "involves three or more consecutive calendar days of incapacity plus two visits to a health care provider." The proposed regulation clarifies that the two visits to the health care provider must occur within thirty (30) days of the period of incapacity. The second proposed regulation in this area specifies that to qualify as "periodic visits" for a chronic serious health condition, there must be at least two (2) visits to a health care provider per year.

Perfect Attendance Awards - The DOL proposes to clarify its current position on perfect attendance awards to provide that employers can deny those awards to employees who do not have perfect attendance because of FMLA leave, so long as it treats FMLA leave and similar non-FMLA leave in the same way.

Increased time for FMLA Eligibility and Designation for Employers - The DOL proposes a rule that would extend the time period an employer has to mail eligibility and designation notices from two (2) to five (5) business days after learning of the employee's FMLA-qualifying condition. Additionally the rule proposes that if the employer determines the medical certification is incomplete, the employer must return it to the employee, stating in writing the information that is missing and giving the employee seven (7) calendar days to cure.

FMLA Absence Notice Requirements - The DOL proposes a rule that would modify the employee's notice requirement for FMLA leave to state that an employee in most cases must follow the employer's usual and customary call-in procedures for reporting an absence.

Medical Certifications - The DOL proposes a regulation that would allow for direct contact between the employer and health care providers for "clarification and authentication" of medical certifications, so long as the HIPAA medical privacy regulations are met. Although employers may not ask health care providers for additional information beyond the certification, the certification form may (but is not required to) include information of the diagnosis of the employee's health condition.

FMLA Leave for Birth of a Child - The DOL's proposed changes clarify that pregnant employees and their spouses may take FMLA leave to attend prenatal care appointments. Males attending prenatal appointments with spouses will be protected under the FMLA. Additionally, male employees also may take FMLA leave if their pregnant spouses have severe morning sickness and are in need of their assistance for physical or psychological care.

Please note that these are currently proposed regulations, and they have not yet been adopted by the Department of Labor.  The comment period for the proposed regulations closed on April 11, 2008, and the DOL will issue the final regulations after reviewing and considering the comments that have been submitted.   Should these regulations pose concerns to your business, please consult with an experienced labor and employment attorney before taking any action.

Kelli Hill


Kelli Hill is an associate of Constangy, Brooks & Smith in the Macon office. Constangy, Brooks & Smith limits its practice to labor and employment law counseling to management and has done so, exclusively, since 1946, when it was founded in Atlanta, Georgia. Constangy, Brooks & Smith, now has thirteen offices in nine states and represents management throughout the United States.