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Department of Labor’s Proposed Revisions To The FMLA Regulations

On February 11, 2008, the DOL issued a Notice of Proposed Rule Making (NPRM) with its suggested revisions to the FMLA regulations. The NPRM was published in the Federal Register and can be accessed at www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. The entire document is 127 pages long, of which 42 pages are the actual proposed regulations and proposed new forms. The remainder of the document is the DOL’s explanation of, and rationale behind, the proposed changes (called the “Preamble”). Although it is lengthy, we encourage employers to read the Preamble, as it sheds important light on most of the changes. If employers read only the proposed regulations, they will miss some of the key nuances related to the regulations. The DOL has also set up a website section devoted to the new regulations at www.dol.gov/esa/whd/FMLANPRM.htm.

The NPRM reflects years of review by the DOL, including collection of data and soliciting input from all stakeholder groups (employers, employee advocacy groups, unions, and the medical community). It is an attempt by the DOL to increase FMLA awareness, promote legitimate use of FMLA, facilitate compliance by both employers and employees, and reduce some of the unintended consequences of the existing regulations.

It appears that the DOL has tried to strike a balance between employer needs and employee rights by including provisions addressing the concerns of each group. As a result, employers will find some of the proposed regulations to be laudable improvements (including a reorganization of the regulations thereby making them more user-friendly). However, employers are also likely to conclude that the DOL did not address certain key issues in a meaningful way (or at all) or go far enough to reduce or eliminate many of the unintended consequences of the existing regulations. Most significantly, the proposed regulations will still allow an employee with a “chronic” condition to “self-certify” the need to be absent on an unscheduled intermittent basis. A few modest tools have been added to help curb unnecessary use of such intermittent leaves, but it is questionable whether they will have much impact.

The proposed regulations are not final. The regulatory process requires that interested parties be given 60 days to submit comments on them. Comments may be submitted on or before April 11, 2008. Parties are encouraged to submit them electronically. Information on where and how to submit comments is contained in the Preamble.

We cannot emphasize strongly enough how important it is for employers to submit comments. This will be your last chance to be heard on the FMLA regulations for some time to come. If you prefer not to submit comments to the DOL directly due to confidentiality concerns (any comments you submit are a matter of public record), we encourage you to submit them in confidence to us by e-mailing them to Sue Willman (swillman@spencerfane.com) no later than April 1. We will then incorporate your comments into the ones being submitted by our firm without including any identifying information about your organization.

Following is a discussion of what we believe to be most significant proposed changes to the regulations that will affect employers. This list of changes is by no means all-inclusive. Numerous proposed changes are not included on the list. Furthermore, many of the existing rules remain the same, and most of them are not discussed below. We encourage you to read the NPRM to learn more about all of the proposed changes.

COVERAGE AND ELIGIBILITY ISSUES

1. Length of Service Requirement. In determining whether an employee meets the 12-month service requirement to be eligible for FMLA leave, an employer will only have to review the 5 years prior to the date leave is to begin in most cases. If an employee has a break in service that lasts more than 5 years, the prior service does not need to be counted except if the break in service was due to military leave and except for another limited exception not discussed here. At its option, an employer may count service prior to a five-year break in service, but it must do so uniformly with respect to all employees with similar breaks in service. 29 CFR 825.110(b) and (c).

2.  Becoming Eligible for FMLA While on Non-FMLA Leave. If an employer grants a non-FMLA leave to an employee before that employee is eligible for FMLA leave, and if the employee becomes eligible for FMLA leave while on the non-FMLA leave, the leave period after the date the employee becomes eligible is FMLA leave and the leave before such leave is non-FMLA leave. 29 CFR 825.110(d).

3. Joint Employment and Professional Employment Organizations (PEO’s). For employer coverage and employee eligibility purposes, a PEO and its clients will not be considered joint employers if the PEO merely performs administrative functions (such as payroll, benefits, regulatory paperwork, and updating employment policies) and if the PEO has no right to hire, fire, assign, or direct and control a client’s employees. 29 CFR 825.106(b)(2).

4. Joint Employment and Work Site. For purposes of employee eligibility under the “50 employees within 75 miles rule,” the current regulations specify that an employee’s “work site” is the site to which the employee reports, or if none, from which the employee’s work is assigned. In the case of joint employment, the employee’s work site is the primary employer’s office to which the employee is assigned or reports. A new exception has been added to this latter rule. If the employee has physically worked for at least one year at a facility of the secondary employer, that facility is the employee’s work site. 29 CFR 825.111(a).

CALCULATION OF LEAVE

1. Holidays. The current regulations allow an employer to count holidays as FMLA leave if the employee is absent the entire week in which the holiday falls and if the employee does not work on the holiday. The current regulations also prohibit an employer from counting a holiday as FMLA leave if the employee is not absent the entire week in which the holiday falls, unless the employee was scheduled to work on the holiday. These provisions have not been changed. 29 CFR 825.200(f).

2. Leave Increments. The current regulations require employers to track FMLA leave in minimum increments to the shortest period of time used in the employer’s payroll system. This requirement remains unchanged. The DOL has rejected employer requests to increase the minimum increment to one hour, two hours, or four hours. 29 CFR 825.205(a).

3. Overtime. The DOL has clarified the rules governing absences from scheduled overtime and whether they count as FMLA leave. This issue arises primarily in situations where an employee is limited by an FMLA-qualifying condition to working 8 hours per day or 40 hours per week. The proposed regulations state that if the employee would otherwise be required to report for overtime duty but for the taking of FMLA leave, then the overtime hours the employee would have worked count against the employee’s 12-weeks of FMLA entitlement. The DOL has eliminated the existing language that distinguishes between mandatory, voluntary, and “as needed” overtime, because it is confusing and all overtime is “as needed.”  29 CFR 825.205.

DEFINITIONS

1. Definition of “Serious Health Condition” (Acute Conditions). Whether such a condition causes an “incapacity” will: (a) still be measured by the duration of the condition itself (more than 3 days) and not by the number of days absent from work, even though numerous employers proposed the latter because it is far easier to track; and (b) still require treatment by a health care provider at least twice within 30 days from the onset of the incapacity (the 30-day requirement is new) or at least once during the period of incapacity with a regimen of continuing treatment thereafter (including the mere prescription of medication). The DOL has retained the existing language regarding common ailments and examples of them, which indicates that common ailments are ordinarily not FMLA-qualifying unless complications arise. Although some employers believe the DOL’s list causes confusion and converts common ailments into serious health conditions, the DOL disagrees. It believes that such ailments do not necessarily become serious health conditions even if complications arise, because the condition would still need to meet the definition of “incapacity” stated above to be FMLA-qualifying. 29 CFR 825.113(d) and 825.115(a).

2. Definition of “Serious Health Condition” (Chronic Conditions). Under the existing regulations, a chronic condition requires “periodic” visits for treatment, but the word “periodic” is not defined. The proposed regulation defines it as “at least twice a year.”  Otherwise, the definition of “chronic condition” has not changed (still requiring that the condition continue over an extended period of time and result in a periodic episode of incapacity lasting any length of time). Overall, the definition imposes no requirement that the chronic condition actually be a “serious” one, since even two absences in a year’s time would meet the requirement that the condition continue over an extended period and each absence would be a periodic episode of incapacity. Furthermore, an employee could visit a doctor twice in one month (thus fulfilling the “twice a year” requirement) and not be required to see the doctor again until a year later (which calls into question just how serious the condition is if the employee only needs to be evaluated about once a year). 29 CFR 825.115(c).

3. Definition of “Prenatal Care.”  The current regulations permit a pregnant employee to take FMLA leave for prenatal appointments and prenatal care. The regulations have been revised to clarify that a father is entitled to FMLA leave to care for a pregnant spouse who has severe morning sickness or other prenatal complications (and may need physical care) and to accompany her to prenatal doctors’ appointments (and may need to be driven or need psychological care). 29 CFR 825.120(a)(5).

4. Definition of “Needed to Care For.”  Under the current regulations, leave to care for a family member is permitted if “needed” to provide physical and/or psychological care. New language has been added to make it clear that the employee does not need to be the only individual or family member available to provide the care or actually providing such care (e.g., siblings may be sharing responsibility to care for an ill parent or a parent may be hospitalized and already receiving care from hospital personnel). The DOL believes it is beneficial for the ill family member to have psychological comfort and reassurance from the employee even if someone else is providing inpatient or home care. 29 CFR 825.124.

5. Definition of “Health Care Provider.”  A portion of this definition has been revised to specifically include physician assistants who are authorized to practice under state law and to clarify that all para-professionals who fall within the definition of “health care provider” (nurse practitioners, nurse-midwives, clinical social workers, and physician assistants) must be performing within the scope of their practice as defined under state law. 29 CFR 825.125(b)(2).

6. Definition of “Medical Necessity.”  The DOL has combined and expanded several existing provisions to better define “medical necessity.”  However, for intermittent and reduced schedule leave, the requirement of “medical necessity” is automatically met if the employee’s health care provider merely certifies that there is “medical necessity” or provides the treatment regimen and other relevant information on the medical certification. 29 CFR 825.202(b).

PAID TIME OFF

1. Use of Paid Time Off Benefits. A new requirement has been added when the employer requires or the employee elects to use paid time off benefits while on FMLA leave. The employer, in the eligibility notice, must notify the employee that: (a) the employee must satisfy all of the employer’s procedural and qualifying standards for the paid time off; and (b) if those standards are not met, the employee is still entitled to unpaid FMLA leave. The DOL has deleted the existing language prohibiting employers from imposing FMLA procedural standards for use of paid time off benefits if their own policies have less stringent ones. An employer may now impose its stricter or less stringent standards for use of paid time off benefits, but only for the purpose of determining if the time off will be paid. If an employer’s standards are stricter than what the FMLA regulations would otherwise require, an employee can elect not to comply with the employer’s standards (and forego paid time off benefits) but would still be eligible for FMLA leave. By way of examples, the Preamble states that an employer will be permitted to enforce a paid time off policy that requires: (a) use of paid time off benefits in minimum increments (e.g., half days, full days) even if an employee uses less than the increment for FMLA leave; (b) minimum advance notice (e.g., two days’ advance notice) and/or approval to use vacation, even though the regulations may require less notice of the need for FMLA leave (e.g., normally the same or next work day). 29 CFR 825.207(a) and 825.300(b)(3)(iii).

2. Supplemental Pay While on Paid Leave. If an employee receives paid time off benefits while on FMLA leave pursuant to a disability benefits plan, and if the amount received is less than 100% of the employee’s pay, the employer and employee may mutually agree to supplement the disability benefits pay with any other form of paid time off benefits the employee may have (such as vacation). This same rule does not appear to be permitted if the employee is receiving worker’s compensation pay. 29 CFR 825.207(d) and (e).

3. Worker’s Compensation Paid Time Off and Light Duty. An employee still has the right to refuse worker’s compensation light duty (thereby risking the loss of worker’s compensation paid time off benefits) and remain on unpaid FMLA leave instead. However, the DOL has eliminated the employer’s right to treat the time on light duty against the employee’s 12 weeks of job reinstatement rights. The DOL believes it is confusing to have separate 12-week periods for reinstatement rights and for leave rights. As a practical matter, very few employers exercised the right anyhow because it was too difficult to provide an understandable explanation of the rule to employees. 29 CFR 825.(e).

4. Government Employers and Use of CTO While on Leave. State and local governments can now count as FMLA leave any time off that otherwise qualifies as FMLA leave even if an employee uses compensatory time off (CTO) for the leave. Under the current rules, leave covered by CTO cannot be counted as FMLA leave even if it otherwise qualifies for FMLA leave. 29 CFR 825.207(f).

EQUIVALENT AND ALTERNATIVE JOBS

1. Transfer to an Alternative Job. Such a transfer is permitted only if the FMLA leave is foreseeable and based on planned medical treatment for the employee or a family member. An employee on intermittent leave for a chronic condition who has unscheduled absences cannot be transferred to an alternative job. This rule has not changed, but it is now clear that transfers to alternative jobs are not allowed for an employee on intermittent leave unless the leave is for planned medical treatment. 29 CFR 825.204.

2. Perfect Attendance Bonuses. These will now be permitted, but employees who have FMLA absences must be treated in the same manner as employees who have non-FMLA absences. For example, if an employer does not count paid time off as an absence (such as vacation time) in calculating perfect attendance bonuses, then any FMLA absences covered by vacation pay could not be counted in determining if the employee is eligible for a perfect attendance bonus. 29 CFR 825.215(c)(2).

EMPLOYER NOTICE REQUIREMENTS

1. General Notice (Poster/Policy). The existing poster and written FMLA policy requirements have been combined into one general notice requirement. The existing poster has been revised to include more information, and the new one is included in the proposed regulations. It must be posted in conspicuous places that are accessible to both applicants and employees. The requirement that an employer have a written FMLA policy has been eliminated, but substituted with a requirement that the content of the poster be included in a handbook that is distributed to all employees or it must be distributed annually to all employees if not included in a handbook. Electronic posting and distribution is permissible. The proposed civil money penalty for failure to post the required FMLA poster will be increased from $100 to $110. This increase is required by law under the Federal Civil Penalties Inflation Adjustment Act of 1990. 29 CFR 825.300(a).

2. Eligibility Notice. A new written eligibility notice requirement has been added. The DOL has drafted a prototype eligibility notice. The eligibility notice must be given: (a) within 5 business days after FMLA leave is requested or the employer acquires knowledge that the leave may be for an FMLA-qualifying condition; (b) within 5 business days (if feasible) the first time in every 6 months thereafter if any FMLA leave is taken by the employee during that 6 months; and (c) within 5 business days after an employee subsequently requests FMLA during that 6-month period if any specific information in the prior eligibility notice changes. If the employee is not eligible for FMLA leave, the notice must state the specific reason the employee is not eligible (e.g., has less than 1 year of service and how much service the employee has, worked less than 1,250 hours in previous 12 months and how many hours the employee actually worked, doesn’t work at a site with 50 employees within 75 miles, or employee has exhausted his/her 12-week entitlement and on what date the employee will again become eligible). If the employee is eligible for FMLA leave, the notice must state: (a) how much FMLA leave the employee still has left during the 12-month FMLA leave period; (b) the specific expectations and obligations of the employee (including whether a medical certification is required, and if so, attaching it; whether the employee will be required or can use paid time off benefits while on leave; procedures for payment of health insurance premiums; whether a fitness for duty/release to return to work will be required, and if so, attaching a list or job description of the employee’s essential job duties; whether the employee is a key employee; the employee’s reinstatement rights; whether periodic reports on the employee’s health status and intent to return to work will be required; and other information; and (c) the consequences for failing to meet those obligations. 29 CFR 825.300(b).

3. Designation Notice. The DOL has made changes to the current requirements related to designating time off as FMLA leave, including a new prototype designation notice that replaces the current notice called “Employer Response to Employee Request for FMLA Leave.”  A written designation notice must now be given whether or not the leave qualifies as FMLA leave.  If the leave does not qualify as FMLA leave, the employer must so state in the designation notice and provide the designation notice within 5 business days after the employer has enough information to determine if a leave qualifies as an FMLA leave (e.g., after receiving any required medical certification). If the leave qualifies as FMLA leave the designation notice must state (a) the number of hours, days or weeks that will be counted against the employee’s 12-week entitlement, if that information can be determined (such as in the case of a continuous leave, reduced schedule leave, or intermittent leave for planned medical treatment); and (b) any of such time that will be “paid” FMLA leave if the employer requires that paid time off benefits be used while on FMLA leave. When the leave qualifies as FMLA leave, the designation notice must be provided: (a) within 5 business days after the employer has enough information to determine if a leave qualifies as an FMLA leave (e.g., after receiving any required medical certification); and (b) every 30 days thereafter during which FMLA leave is taken (but only if the number of hours, days or weeks of FMLA could not be determined when the initial eligibility notice was given, as would be the case for intermittent leave involving unscheduled absences), in which case the notice must specify the number of hours/days/weeks designated as FMLA leave during the previous 30 days and any of such time that was treated as “paid” FMLA leave during that period if the employer requires that paid time off benefits be used while on FMLA leave. 29 CFR 825.300(c).

4. Retroactive Designations. Designation can be made retroactively after expiration of the 5-day period mentioned above, as long as the designation does not cause harm or injury to the employee. (This reflects the Ragsdale decision.)  In the Preamble, the DOL acknowledges that in most cases it will probably be difficult for an employee to show such harm. In addition, if an absence is FMLA-qualifying, an employer and employee can retroactively designate it as FMLA leave by mutual agreement, even if the designation is outside the 5-day period. 29 CFR 825.301(d).

EMPLOYEE NOTICE REQUIREMENTS

1. Timing of Notice. In the case of foreseeable leave, 30 days’ advance notice is still required, or if 30 days’ advance notice is not practicable, it must be given “as soon as practicable” (as soon as possible and practical). If 30 days’ advance notice is not given, the employer may require the employee to explain why it was not practicable to give 30 days’ advance notice. Where the leave is foreseeable but will begin in less than 30 days, the term “as soon as practicable” means, in most cases, the same business day as learning of the need for leave (or the next business day if the employee learned of the need for an FMLA absence during off-duty hours), and not within two work days as is the current rule. Failure to give timely notice can result in a delay of the leave, with any absences during the delay counting as non-FMLA absences, provided the employee had actual notice of FMLA and the employer’s notice requirementsIf leave is unforeseeable, the employee must give notice of the need “as soon as practicable.”  This means “promptly” in most cases. In the Preamble, the DOL states that it expects employees will be able to give such notice before the start of their shift in all but the most extenuating circumstances. Failure to give timely notice can result in a delay of the leave, with any absences during the delay counting as non-FMLA absences, provided the employee had actual notice of FMLA and the employer’s notice requirements. 29 CFR 825.302(a), 825.303(a) and 825.304.

2. Method of Notice. A request for FMLA leave only needs to be oral, unless an employer has usual and customary procedures governing leave requests and absence notification. If an employer has procedures governing leave requests and absence notification, it is permitted to enforce them as long as: (a) they apply to both FMLA and non-FMLA leaves/absences and are uniformly applied; (b) they do not require more advance notice that FMLA permits; (c) they do not require advance written notice in emergency situations; and (d) the employee has actual knowledge of them (via the required poster and the required distribution of the posting in a handbook or annually if the posting is not included in a handbook). Except as stated above, an employer’s leave and absence notification procedures can include a requirement that leave requests be in writing, that leave be requested from a designated person (such as the Human Resources Department), and that absences while on leave (such as unscheduled intermittent absences) be called in to a designated person or call-in number. If an employee fails to comply with the employer’s procedures and if there are no unusual or extraordinary circumstances that would have made it impossible or unreasonable for the employee to follow the procedures: (a) the employee can be disciplined in accordance with said procedures; and/or (b) leave can be delayed or denied. 29 CFR 825.302(c) and (d); 825.303(b) and (c); and 825.304.

3. Content of Notice. The employee must give “sufficient” notice of the need for FMLA leave, but still does not have to mention the FMLA. If leave is taken due to the serious health condition of the employee or a family member, it is “sufficient” only if it includes, at a minimum, the following: (a) how a condition renders the employee/family member unable to work/perform daily activities; (b) anticipated duration of the absence; and (c) whether the employee/family member will be visiting the doctor or is under the continuing care of a health care provider. Calling in “sick” without more is not enough. Once the employee provides “sufficient information,” the employer must then request any additional information needed to determine if the absence will qualify as an FMLA absence. An employee is required to respond to reasonable inquiries from the employer for more information, and failure to do so can result in denial of the leave. 29 CFR 825.302(c) and 825.303(b).

MEDICAL INFORMATION

1. Request for Medical Certification. An employer still has the option of requiring medical certification for serious health conditions. If a medical certification is required by the employer, the employee must be notified of this requirement each time a certification is required. Notice of this requirement must be in writing if an eligibility notice is required. Otherwise, an oral request is sufficient. The medical certification, if required, must be requested: (a) within 5 business days after leave is requested in the case of foreseeable leave; (b) within 5 business days after leave begins in the case of unforeseeable leave; or (c) at a later date if the employer has reason to question the appropriateness or the leave or its duration. The request for certification must state the consequences for failing to provide an adequate certification.  The certification must be returned within 15 calendar days unless it is not practicable to do so despite the employee’s diligent, good faith efforts (in which case a reasonable extension is apparently required, although no time frame for such an extension is mentioned). In the case of foreseeable leave that is requested at least 30 days in advance, an employer can no longer require the medical certification to be provided at the same time leave is requested. Instead, the 15-day rule will apply to all leaves, both foreseeable and unforeseeable.  The certification can be returned to the employer either by the employee or by the employee’s health care provider. In the latter case, the employee is required to furnish the health care provider with any legally-required authorization (under HIPAA or other law). An employee can no longer use HIPAA as an excuse for failing to provide a certification. 29 CFR 825.305(a), (b), and (d) and 825.311.

2. Content of Medical Certification/Recertification. The permitted content for a certification generally remains the same, with five exceptions:   First, the health care provider is now permitted to provide information on diagnosis, symptoms, hospitalization, doctors’ visits, whether medication has been prescribed, referrals for evaluation or treatment, and any other regimen of continuing treatment. However, this information cannot be required if the health care provider furnishes sufficient “medical facts” to support the medical necessity for leave due to a serious health condition. Second, the health care provider must provide sufficient information to establish that the employee cannot perform essential job duties (or, in the case of a family member, to establish that a family member is in need of care), the nature of any other work restrictions, and the likely duration of such inability (or, in the case of a family member, the frequency and duration of leave needed to care for the family member). Third, the health care provider must specify which functions of the employee’s job he/she is unable to perform. The health care provider’s opinion must be based on the information contained in any statement or job description of essential functions that the employer provides for the health care provider to review, if the employer chooses to provide such a statement/job description. Otherwise, it appears that the health care provider can rely on what the employee states are his/her job duties. Fourth, the health care provider must now certify that intermittent or reduced schedule leave is medically necessary. A simple statement of medical necessity is all that is required; the health care provider does not need to support the statement with any specifics.Fifth, and with respect to a recertification, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. The current rules requiring the health care provider to provide an estimate of the dates and duration of treatment/recovery (in the case of foreseeable intermittent or reduced schedule leave) and the frequency and duration of episodes of incapacity (in the case of unforeseeable intermittent or reduced schedule leave) remain unchanged. The above rules apply to both certifications and recertifications. The DOL has developed a new medical certification form that it believes is less confusing than the current form. However, it is still a “one size fits all” certification and is still confusing. The DOL has rejected the idea of developing forms for different purposes (such as medical leave v. family leave, continuous leave v. intermittent leave, etc.). 29 CFR 825.123(b), 825.306 and 825.308(e).

3. Duration of Medical Certification. The new rules do not specifically state that a medical certification is in effect for the duration of leave specified on it, but we presume that to be the case. In other words, once the specified duration of the need for leave expires, a new certification may be required. A new rule has been added regarding leave that is certified as lasting more than one year. If the need for leave lasts beyond one year, a new certification can be required each year. This issue most often arises in situations where the employee’s health care provider certifies that the employee needs “permanent” or “lifetime” unscheduled intermittent leave for a chronic condition. Another situation could also arise, that being a certification in which the doctor states that the duration of the leave is “unknown.”  In such a case, the certification is arguably “insufficient” in which case an opportunity to cure must be provided (see below). 29 CFR 825.305(e).

4. Frequency of Medical Recertification. The new recertification rules are among the most confusing, particularly on the issue of how often one can be required. The proposed rules include conflicting language, and they also conflict with the Preamble explanation. The rules state that: (a) a recertification may be requested no more often than every 30 days and only in connection with an absence; (b) a recertification may not be requested until the designated minimum “duration of incapacity” (as stated on the certification) has expired (if the duration of incapacity is more than 30 days); (c) a recertification may be requested every 6 months in connection with an absence in any event (if the duration of incapacity is more than 30 days); and (d) a recertification may be requested at any time if an extension to leave is requested by the employee, circumstances described in the previous certification have changed significantly, or the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. In the case of an intermittent leave for a chronic condition that will last more than 30 days and will result in individual episodes or periods of incapacity of short duration (hours, days, or any period of 30 days or less), the rules are inconsistent within themselves and also conflict with the Preamble explanation. More specifically, the language in bold typeface above conflicts with the language in the Preamble, primarily because the DOL has used the terms “duration of incapacity” and “duration of condition” interchangeably when they are two very different concepts. (For example, an employee could have a duration of condition that is permanent, but only experiences durations of incapacity that are one or two days or even hours.) With respect to “conditions” that will last for an extended period of time (basically meaning more than 30 days, but would include a specific number of months or years, or conditions lasting an “indefinite, unknown, or lifetime” period), the Preamble clearly states that recertifications will only be permitted when the designated “duration of the condition” has expired and no more often than every 6 months in any event. The proposed rules speak in terms of duration of incapacity instead and would allow recertification no more often than every 30 days in any event. The inconsistencies in the language and with the intent expressed in the Preamble need to be corrected with clearer and more accurate language. However, it is clear from the Preamble that the DOL was swayed by the numerous complaints of employees and their advocates that it is burdensome and unfair for employees to be required to produce recertifications every 30 days in the event of a condition that lasts more than 30 days (such as chronic conditions). The DOL’s intent appears to be to limit such recertifications to every 6 months. If that is true, we are not sure why there is a rule permitting recertifications every 30 days, since it would never apply. 29 CFR 825.308 (a) and (b).

5. Reasons for Medical Recertification. As mentioned above, a recertification may be requested “at any time” upon the occurrence of certain events, those being a request for a leave extension, a significant change in the previous certification, or doubt about the validity of an absence or need for leave. Although the rules permitting recertifications “at any time” have not changed, the DOL has now added some interpretative guidance by way of examples on what may constitute “a significant change” or “doubt.”  For example, if a certification says an employee will need to be absent 1-2 days at a time for a migraine and the employee’s last two migraines resulted in absences of 4 days each, that would be a “significant change.”  Also, if an employee has a pattern of using FMLA leave right before or after scheduled days off (e.g., too many Friday or Monday absences), that would be a “significant change.”  Also, if an employer receives reliable information that an employee’s off-duty activities are inconsistent with the need for FMLA leave (like playing softball when recuperating from knee surgery), that would cast “doubt” on whether there was still a valid need for FMLA leave. 29 CFR 825.308(c).

6. Complete and Sufficient Medical Certification/Recertification. The medical certification must be complete and sufficient. It is incomplete if any question is not answered. It is insufficient if any information provided is vague, ambiguous, or non-responsive. The new certification form states that it may be “insufficient” if the health care provider answers “lifetime,” “unknown,” or “indeterminate” in response to questions on the form. This would include questions about the length of time leave is needed and the estimated frequency and duration of absences (particularly for chronic conditions involving unpredictable absences). These rules apply to both certifications and recertifications. 29 CFR 825.305(c) and 825.308(e).

7. Opportunity to Cure Deficiencies on Medical Certification/Recertification. If a medical certification is incomplete or insufficient, the employer must state in writing what information is still needed and give the employee 7 calendar days to cure the deficiencies. It is not clear whether this rule applies just to certifications or also to recertifications, although the language suggests that it applies to both. A certification/recertification that is never returned does not fall under the 7-day cure rule. In other words, an extension to the original 15-day submission period is not required if an employee never returns the certification/recertification, unless the employee made a diligent, good faith effort to timely produce it and was unable to do so for reasons beyond the employee’s control. 29 CFR 825.305(b) and (c).

8. Authentication and Clarification of Medical Certification/Recertification. Once a complete and sufficient certification has been submitted (during the 15-day submission period or any 7-day cure period), the employer may elect to verify that it is authentic (that the health care provider actually completed and/or authorized it) or obtain clarification of provided information (to understand handwriting or the meaning of a response), by contacting the employee’s health care provider directly for said purposes. The employer no longer needs to use its own health care provider for purposes of authentication or clarification. In any contact with the employee’s health care provider, the employer is prohibited from seeking more information than what is permitted to be on the certification. For authentication purposes, an employee’s consent is not required nor does HIPAA apply. The employer must provide the health care provider with a copy of the certification and ask for verification that the health care provider actually completed and/or authorized it. The employer is not permitted to seek additional information.For clarification purposes, HIPAA applies and the health care provider can refuse to communicate with the employer in the absence of a valid HIPAA consent. The employer is not permitted to require the employee to provide a valid HIPAA consent at any time (including at the time leave is requested). Instead, it is the employee’s choice to provide it if the employer has a legitimate need to clarify the certification or to risk having FMLA leave denied. If an employee does not provide such authorization and does not otherwise provide adequate clarification, the employer may deny FMLA leave. If the employee provides such authorization, the employer may not seek any information beyond the information permitted to be on the certification.  These rules apply to both certifications and recertifications. 29 CFR 825.307.

9. Second and Third Opinion Certifications. The proposed rules are largely the same as the existing rules. However, they have been modified to make it clear that the second or third opinion provider may require relevant medical records and information from the employee’s health care provider (or the family member’s health care provider, if leave is due to a serious health condition of a family member) in order to render a sufficient and complete second/third opinion. If an employee (or the family member) fails to provide an authorization permitting the release of the records/information, FMLA leave may be denied. 29 CFR 825.305(d) and 825.307(b) and (c).

10. Fitness for Duty Certification. The proposed rules include some additional requirements. First, the employer must notify an employee in the eligibility notice if a fitness for duty certification will be required, and a fitness for duty certification can only be required if required of all similarly-situated employees (e.g., in the same occupation or with the same serious health condition). If the employer fails to timely provide the required notice, no fitness for duty certification may be required. Second, the employer can require that the fitness for duty certification be more than a simple statement releasing the employee to work. The employer may require the health care provider to actually assess whether the employee has the ability to perform the essential functions of the job. Any such assessment must be based on a list or job description of essential job duties provided by the employer for the health care provider, provided the employer provides it with the eligibility notice. Third, the same rules on authentication and clarification for certifications/recertifications also apply to fitness for duty certifications. Fourth, an employee has the same obligations to participate and cooperate in the fitness for duty certification process as he/she had in the initial certification process. Fifth, a fitness for duty certification is not permitted for each absence taken on intermittent or reduced schedule leave, although there is one new notable exception:  If reasonable safety concerns exist regarding the employee’s ability to perform his/her duties, the employer may require a fitness for duty certification every 30 days during such a leave, but may not terminate employment while awaiting the certification. 29 CFR 825.310 and 825.311(d).

FORMS

The DOL has developed four new or revised forms. We encourage you to review them to evaluate their user-friendliness and practicality.

1. WH-380 Certification of Health Care Provider. This form replaces the current “Certification of Health Care Provider” form (also numbered as WH-380). The form has been completely revamped and includes more specific questions. It no longer includes the lengthy definition of “serious health condition.”  It refers to episodes of incapacity for chronic conditions as “flare ups.”  It makes clear that answers along the lines of “lifetime,” “unknown,” and “indeterminate” may not be sufficient. It includes a section for the employer to list the employee’s regular work schedule and essential job functions (or to attach a job description). It requires the health care provider to identify his/her type of practice and medical specialty, as well as fax number. However, it is still a “one size fits all” form. The DOL believes it is a simplified version of the existing form. The DOL rejected suggestions that it develop different forms for different types of FMLA leave (continuous v. intermittent, medical v. family, chronic conditions v. all other conditions, etc.).

2. WH Publication 1420/Poster-Policy. This document is an expanded version of the current Poster. It is a combined poster and policy that must be posted and either included in a distributed handbook or distributed annually as a separate document. It contains expanded explanations of employer and employee rights and obligations. One key provision that is now missing is the specific 12-month period the employer uses for calculating FMLA leave usage (rolling backward, rolling forward, calendar, or fiscal). Employers have long-included such a provision in their current FMLA policies because the regulations say (and still say) that an employee is entitled to the most generous 12-month period available of the four alternatives if the employer fails to select one of them. 29 CFR 825.200. It is possible that an employer’s past practice of uniformly and consistently applying a particular period will constitute “selection” of the period, but there may still be some risk if employees are not notified in writing of the period selected.

3. WH-381 Eligibility Notice. This is a new form. Together with the Designation Notice form, it replaces the existing “Employer Response to Employee Request for Family or Medical Leave” form (also numbered as “WH-381”). It reorganizes the information on the current form, adds information on eligibility (or lack thereof), refers to episodes of incapacity for chronic conditions as “flare ups,” and specifies whether a list of essential functions (or job description) is attached (and if so, states that the fitness for duty certification or release to return to work must address the employee’s ability to perform those functions).

4. WH-382 Designation Notice. This is a new form. Together with the Eligibility Notice form, it replaces the existing “Employer Response to Employee Request for Family or Medical Leave” form (currently numbered as “WH-381”). It includes a section in which the employer must specify how much FMLA leave the employee will be charged and/or has used. It includes a statement that the employer will notify the employee if the amount charged to the employee’s 12-week entitlement changes (e.g., amount of leave actually taken differs from the amount originally requested). It also includes a section for the employer to complete if a submitted medical certification is incomplete or insufficient, in which case the employer must specify the deficiencies and include the expiration date for the 7-day cure period. It further includes a section for the employer to complete if FMLA leave is denied, but does not require the employer to explain the reason behind its decision.

MISCELLANEOUS

1. Waiver of FMLA Rights. Employees may retroactively waive their FMLA rights, but may not waive them prospectively. This means that severance or separation pay provided in exchange for a release of liability may include FMLA claims up to the date the release is signed. Under the current regulations, both retroactive and prospective waivers are prohibited. 29 CFR 825.220(d).

2. Responsiveness, Cooperation, and Resolution Obligations. In addition to other obligations mentioned elsewhere, employers are required to: (a) provide responsive answers to employee questions about employee rights and responsibilities under the FMLA (29 CFR 825.300(b)(9)); (b) discuss and resolve with an employee any dispute about whether “paid” leave qualifies as FMLA leave (29 CFR 825.301(c)); (c) document any such discussions and resolutions and retain such documentation for 3 years pursuant to FMLA record retention rules (29 CFR 825.301(c) and 825.500(c)(7)).  In addition to other obligations mentioned elsewhere, employees are required to: (a) respond to employer questions designed to determine whether an absence is potentially FMLA-qualifying (29 CFR 825.302(c) and 825.303(b)); (b) make a “reasonable effort” (as opposed to the current requirement of “attempt to”) schedule foreseeable leave for planned medical treatment (whether continuous, intermittent, or reduced schedule) so as not to disrupt unduly the employer’s operations (29 CFR 825.203); (c) discuss and resolve with the employer any dispute about whether “paid” leave qualifies as FMLA leave (29 CFR 825.301(c)); and (d) advise an employer as soon as practicable, in the case of foreseeable leave, if dates of scheduled leave change, are extended, or were not initially known (29 CFR 825302(a)).

3. Elementary and Secondary Schools. Several revisions have been made to the rules governing local educational agencies, which are not discussed here. 29 CFR 825.600-604.

4. Simultaneous Compliance with Other Laws. The DOL has clarified that an employer may require an employee to comply with procedures permitted under applicable workers’ compensation  laws and under the Americans with Disabilities Act (ADA), including requests for greater information than is permitted by the FMLA, if necessary for the employer to comply with those laws. 29 CFR 825.306(c) and (d).

PROVISIONS ON WHICH DOL HAS SPECIFICALLY REQUESTED COMMENTS

Interested parties may submit comments on anything in the NPRM (including the proposed regulations and any regulations not being changed). However, the DOL has specifically expressed an interest in receiving comments on the provisions listed below. Even though an issue may not appear on the list below, it may still be an issue worthy of comment and the DOL may very well be receptive to reconsidering its position if it receives sufficient comments about the issue. If an employer chooses to submit comments, it should submit comments on issues of concern whether or not the DOL has specifically requested comments on it.

1. Definition of “Public Agency.”  Under the Act itself, a “public agency” is to be defined using the definition of a “public agency” under the Fair Labor Standards Act (FLSA). The current FMLA regulations state that the dispositive test is whether the agency is a separate “public agency” under the “Census of Governments” prepared by the U.S. Bureau of the Census. However, the current FLSA regulations state that the “Census of Governments” test is only one factor in determining whether an agency is a separate “public agency.”  The DOL has not changed the current FMLA regulations to be consistent with the current FLSA regulations, but is seeking comments on whether or not it should do so. 29 CFR 825.108.

2. Time Frame for “Treatment” (Acute Conditions). As discussed earlier in connection with acute conditions, the DOL is proposing that an employee be required to be treated twice within a 30-day period after commencement of a period of incapacity if no regimen of continuing treatment is involved (i.e., no medication, therapy, or other treatment prescribed). However, if a regimen of continuing treatment is involved, the employee must only be treated once, and there is no requirement that the regimen of continuing treatment occur within 30 days after commencement of the period of incapacity. The DOL believes that such a regimen is normally prescribed close in time to the required doctor’s visit, and, therefore, that a 30-day rule is not necessary. However, the DOL is seeking comments on this issue. 29 CFR 825.115(a).

3. Definition of “Periodic” (Chronic Conditions). The term “periodic” in connection with chronic conditions has now been defined to require treatment at least twice or more per year. The DOL believes (although its belief is apparently not based on medical evidence) that employees with chronic conditions may visit their doctors at least twice a year but not more frequently because their conditions may be stable and more frequent visits may not be necessary. The DOL is seeking comments on whether it has used an appropriate definition of “periodic.”  29 CFR 825.115(c).

4. Transfer to Alternative Job. The DOL has clarified, although not changed, an employer’s right to transfer an employee to an alternative job if an intermittent or reduced schedule leave is for planned medical treatment. It is now clear that this right applies only if the leave is foreseeable. However, the DOL is seeking comments on whether it should also apply to unforeseeable leaves, and if so, how the rule should operate. 29 CFR 825.204(a).

5. Minimum Increments (Special Rule for Physical Impossibility). Although the DOL has declined to increase the minimum increment for tracking FMLA leave, it acknowledges that there are situations where physical impossibility prevents an employee from returning to work after an FMLA absence. For example, if a flight attendant needs two hours of time off for physical therapy, and if the flight he/she was assigned to departs before he/she can report to work after the therapy appointment, the employee will not be able to work the remainder of his/her shift (or entire flight assignment if it extends overnight or longer). The DOL also acknowledges that another regulation prohibits an employer from forcing an employee to use more FMLA leave than necessary, which in cases of physical impossibility could result in an employee incurring non-FMLA absences resulting in disciplinary action under an employer’s attendance policy. In cases of physical impossibility, the DOL is seeking comments on whether special rules should apply, and if so, what the rules should be. 29 CFR 825.205. 

6. Voluntary Light Duty. As mentioned earlier, the DOL has eliminated an employer’s right to count light duty against the employee’s 12 weeks of reinstatement rights. At the same time, the DOL has retained the provision that an employer cannot require light duty and an employee can elect to remain on FMLA leave instead. Some employers have suggested that employees be required to accept light duty (if able to work with restrictions, regardless of whether the restrictions are the result of a work-related or off-duty injury/condition) instead of take FMLA leave. The DOL has taken the position that while an employee is on light duty, he/she is able to work and not on FMLA at all. That being the case, if an employee “voluntarily” accepts light duty, no time will be charged to the employee’s 12 weeks of FMLA leave entitlement. At the same time, the employee will not have reinstatement rights because he/she was not technically on FMLA leave. The DOL is concerned that its position may result in denying employees who voluntarily accept light duty from ever returning to their original positions. The DOL is seeking comments on whether voluntary acceptance of light duty will actually have a negative impact on an employee’s ability to return to his/her original job. 29 CFR 825.220(d).

7. General Notice (Posting/Policy). The DOL is seeking comments on several issues.

a. Electronic Posting/Distribution. The proposed regulations require that the new FMLA poster/policy be available to both applicants and employees by posting it and by distributing it in a handbook or annually as a separate document. Posting is required even if there are no eligible employees. Distribution is not required unless there is one or more eligible employee. The DOL has proposed that electronic posting and distribution will be acceptable as long as applicants and all employees have reasonable access. The DOL has also stated that an employer may have to supplement electronic posting/distribution with hard-copy posting in order to ensure that applicants and all employees have access (e.g., when applications are accepted in person, by regular mail, by fax or when employees do not have reasonable access to computers or computer kiosks). The DOL is seeking comments on whether an electronic posting/distribution alternative is workable and will ensure that applicants and employees receive the required FMLA information. 29 CFR 825.300(a).

b. Frequency of Distribution. The proposed regulations require the posting/policy to either be included in a handbook that is distributed to employees (apparently distributed just once) or be distributed annually if not in a handbook. The DOL is seeking comments on these frequency requirements. 29 CFR 825.300(a).

c. Content of Posting/Policy. The DOL is seeking comments on any issue related to the General Notice, which would include comments about its expanded content as reflected on the DOL’s new prototype General Notice form. 29 CFR 825.300(a).

8. Eligibility Notice. The DOL has proposed that the Eligibility Notice be issued within 5 business days after the employee requests leave or the employer acquires knowledge that the employee’s leave may be for an FMLA-qualifying reason. Under the current rules, a similar notice is required within 2 business days. The DOL is seeking comments on whether the 5-day rule is fast enough to impart the required information to employees (see earlier comments on the Eligibility Notice) and is workable for employers. 29 CFR 825.300(b).

9. Designation Notice. The DOL has proposed that the Designation Notice be issued within 5 business days after the employee has sufficient information to determine whether or not the leave qualifies as FMLA leave (e.g., after receiving a complete and sufficient medical certification). With respect to any leave where the exact amount of leave is not known (e.g., unforeseeable intermittent leave for a chronic condition), the DOL has proposed that additional Designation Notices be given every 30 days if any leave is taken during the previous 30 days. The DOL is seeking comments on whether the 5-day rule and the 30-day rule will adequately protect employee rights and are workable for employers. 29 CFR 825.300(c). 

10. Employee Notice. The proposed regulations do not change the requirement that an employee must give sufficient notice of the need for FMLA leave and does not need to expressly mention the FMLA. The DOL is seeking comments on whether employees should be required to expressly assert their FMLA rights, particularly in situations where the employee has previously requested FMLA leave and is subsequently providing notice of any specific dates of leave that were previously unknown or have changed (e.g., follow-up doctors’ appointments after surgery, unscheduled absences for chronic conditions, subsequently scheduled doctors’ appointments for the chronic condition, etc.). 29 CFR 825.302(a).

11. Failure to Provide Medical Certification. The existing regulations require that any required medical certification be returned to the employer within 15 calendar days, unless it is not possible to do so despite the employee’s diligent, good faith efforts. Under the proposed regulations, it is clear that a failure to timely submit the certification (in the absence of circumstances beyond the employee’s control) can result in FMLA being denied. In addition, an employer has no obligation to notify the employee that it has not been received. It appears that no extension of time needs to be given and the 7-day cure period would not apply (since a failure to submit is different than submitting an incomplete or insufficient certification). The DOL is seeking comments on whether: (a) an employer should be required to notify an employee that the certification has not been received (especially in cases where the health care provider may have been asked by the employee or employer to return it directly to the employer); and (b) an employee should be given a 7-day extension to submit the certification if one is not submitted during the initial 15-day period. 29 CFR 825.305(b).

12. Multiple Versions of Medical Certification Forms. The DOL has declined to develop different medical certification forms for different purposes (e.g., employee’s own condition v. family member’s condition, continuous leave v. intermittent leave, chronic conditions v. other conditions). The DOL is seeking comments on whether multiple forms would be clearer than the revised prototype form it has developed (which is “one size fits all”). 29 CFR 825.305(c).

13. Foreign Health Care Providers. The DOL has not changed the provision stating that an employer must accept medical certifications and second/third opinions from foreign health care providers. Employers have suggested that there should be additional requirements for such providers to ensure they have equivalent training and credentials to U.S.-licensed providers and to ensure the viability of even obtaining second/third opinions. The DOL is seeking comments about what specific changes would allow for better authentication of certifications and second/third opinions from foreign health care providers. 29 CFR 825.307(f).

14. Recertifications. The DOL appears to have eliminated an employer’s right to obtain a recertification every 30 days in connection with an absence where the initial certification indicates that the condition will last for an extended period of time (e.g., for a specific number of months or years, indefinite, unknown, or lifetime). Instead, an employer may request them every 6 months in connection with an absence (because it is burdensome/costly for employees to provide them more frequently and to coincide with the requirement that an employee must be treated twice a year for a chronic condition). The DOL is seeking comments about this change in the frequency requirement. 29 CFR 825.308(a), (b), and (c).

15. Duration of Initial Certification. The revised regulations clarify that an employer may require a new initial certification at least annually (and second/third opinions with respect thereto) if the initial certification specifies that the employee needs leave for an indefinite period or a period longer than one year (e.g., on a lifetime basis, permanently, unknown, etc.). The DOL has retained the rule that second and third opinions are not permitted for recertifications. The DOL is seeking comments on whether second and third opinions on recertifications should be permitted in light of its new rule restricting recertifications to every 6 months (in the case of unscheduled intermittent leave for chronic conditions). 29 CFR 825.305(e), 825.307(b) and (c), and 825.308(f).

16. Fitness for Duty Certification. The DOL has expanded the information that can be required in a fitness for duty certification. More than a simple release to return to work will be required, and the employer may require that the employee’s health care provider evaluate the employee’s ability (related to the serious health condition in question) against the essential duties of the employee’s job. It appears that an employer may require its own fitness for duty evaluation, but still cannot delay an employee’s return to work in order to have it done (even if the employee is in a safety-sensitive job and even if employees returning from non-FMLA medical leaves are required to undergo an evaluation by the employer’s health care provider to determine if the employee can safely perform the job). Although some employers sometimes place an employee on paid administrative leave pending an employer-required fitness for duty evaluation (instead of allowing the employee to return to work after being released by his/her own health care provider), the existing and proposed regulations are silent on whether such a practice is permissible. The DOL is seeking comments about the appropriate level of information that employers can obtain on a fitness for duty certification as well as the process that employers may follow to obtain it (including whether second and third opinions or employer-required fitness for duty evaluations may be required on fitness for duty certifications), especially when the employer has reason to doubt the validity of the certification (i.e., whether the employee truly is able to return to work). 29 CFR 825.310.

17. Impact Analysis. By law, the DOL must estimate the burdens and costs associated with implementing the proposed regulations. The NPRM includes a detailed analysis of these issues. Overall, the DOL believes there will be one-time costs and time commitments associated with first-year implementation of the new regulations, but then annual savings thereafter. The DOL is seeking comments on its impact analysis and methodology used. If any employer wishes to comment, we suggest you read that portion of the Preamble which discusses it (beginning at the section entitled “Paperwork Reduction Act”). Federal Register/Vol. 73, No. 28 (February 11, 2008), pages 7933-7960.