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February 11, 2008
New FMLA Rules Proposed

The Department of Labor has published a proposal to revise regulations covering several areas of the Family and Medical Leave Act, including notice requirements, medical certification, and the definition for "continuing treatment" of a serious health condition.

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The department published the proposal in the February 11 edition of the Federal Register. The department is seeking public comment on the proposal. Comments must be received on or before April 11, 2008.

The department is also seeking public comment on issues to be addressed in final regulations regarding military family leave. President Bush recently signed legislation that amends the FMLA to provide leave to eligible employees of covered employers to care for injured service members and because of any qualifying "exigency" arising out of the fact that a covered family member is on active duty. The provisions requiring 12 weeks of leave for a "qualifying exigency" will not be effective until the Department of Labor issues final FMLA regulations defining the term "qualifying exigency."

Notice Requirements for Employees and Employers

One area the proposal addresses is what constitutes timely notice of employee's need to take leave in cases when the employee becomes aware of that need less than 30 days in advance.

"Absent emergency situations, where an employee becomes aware of a need for FMLA leave less than 30 days in advance, the department expects that it will be practicable for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours)," the department states in the proposal.

The proposal also covers the procedures employees use to request leave.

The department is proposing that "absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes a more stringent timing requirement than the regulations provide), and failure to properly notify employers of absences may cause a delay or denial of FMLA protections. Unusual circumstances would include situations such as when an employee is hospitalized and his/her spouse calls the supervisor to report the absence, unaware that the attendance policy requires that the human resources department be called instead of the supervisor."

In addition, the proposal covers the notice requirements for employers. For example, the proposal would require that employers provide a notice explaining the FMLA's provisions and complaint-filing procedures in employee handbooks or by distributing a copy at least once a year. Employers must also provide employees with a notice regarding designation of FMLA leave-- referred to as the "designation notice"--within five business days of having obtained sufficient information to determine whether the requested leave is being taken for a qualifying reason.

Medical Certification

The proposal would allow employers to contact healthcare providers directly for the purposes of authenticating of clarifying a medical certification. The proposal would eliminate "the requirement that the employer's healthcare provider, as opposed to the employer itself, make the contact to an employee's healthcare provider."

"The department believes that this change would significantly address the unnecessary administrative burdens the current requirement creates and, in light of the protections provided by the HIPAA Privacy Rule, will not significantly impact employee privacy. The Department notes again, however, that such contact by the employer may only take place after the employee has been afforded the opportunity to cure any deficiencies with the certification."

The department's proposal also states that healthcare providers may provide information on the diagnosis of the patient's health condition on medical certification forms. "However, the department does not intend to suggest, by including such language, that a diagnosis is a necessary component of a complete FMLA certification," the proposal states.

Serious Health Condition

The department's proposal would change the meaning of "continuing treatment" under the definition of a serious health condition. The proposal would specify that the two visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity unless extenuating circumstances exist, instead of the completely open-ended time frame under the current regulations.

"Accordingly, if an ill employee visits his/her health care provider, is told not to report to work for more than 3 days due to the health condition but is not prescribed any medication, whether the condition is considered a serious health condition for FMLA purposes will depend on whether the health care provider determines that additional treatment is needed within 30 days of the beginning of the initial period of incapacity (for example, whether the provider determines that an additional follow-up appointment should be scheduled in two weeks or two months)," the proposal states. "The beginning of the period of incapacity will usually correspond with the date of the employee's first absence, however, as under the current regulations, the more than three calendar day period of incapacity may commence on a day on which the employee is not scheduled to work."

Among the other areas addressed in the proposal are:

  • Nonconsecutive periods of service
  • Joint-employer coverage


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