Summary of the U.S. Department of Labor's Notice of Proposed Rulemaking on the Family and Medical Leave Act
On February 11, 2008, the Department of Labor (DOL) issued a notice of proposed rulemaking (NPRM) covering a variety of issues regarding implementation of the Family and Medical Leave Act (FMLA). “The FMLA entitles eligible employees of covered employers to take up to a total of 12 weeks of unpaid leave during a 12 month period for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly-placed child; to care for a spouse, parent, son or daughter with a serious health condition; or when an employee is unable to work due to the employee’s own serious health condition … FMLA generally covers employers with 50 or more employees …” 73 Fed. Reg. 7876-77 (Feb. 11, 2008). In addition, the NPRM addresses implementation of the recently-enacted military leave laws. Commentators have until April 11, 2008, to provide comments on the DOL’s proposed rule changes. 73 Fed. Reg. 7876.
The following summary was prepared by the Society for Human Resource Management (SHRM) which chairs the National Coalition to Protect Family Leave (NCPFL) of which the National Association of Wholesaler-Distributors (NAW) is a member, and highlights areas in which the DOL has specifically requested input from stakeholders. Page numbers from the proposed rule’s explanatory preamble are provided for those who want to read DOL’s description and rationale for the proposed rule changes. To access the NPRM, go to www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. The NPRM and other helpful documents regarding this rulemaking are available at the DOL Wage and Hour Division’s FMLA Notice of Proposed Rulemaking website (www.dol.gov/esa/whd/FMLANPRM.htm).
Breaks in Service
Current rules require that an employee be employed by the employer for at least 12 months but that the 12 months need not be consecutive. The proposed rule addresses how to combine nonconsecutive periods of employment by stating that if an employee’s break in service is five years or less, that time is counted toward the 12 month requirement for eligibility. A break of more than five years, however, resets the clock. The proposed rule allows two exceptions, one for breaks due to military obligations and a second where breaks are approved in a written agreement or collective bargaining agreement. If the break in service is more than three years, the burden of proving total length of prior employment rests with the employee. 73 Fed. Reg. at 7882.
Serious Health Condition
The proposed rule does not change the existing rules regarding serious health condition. The proposal retains the list of conditions that generally do not qualify as serious health conditions, but the DOL declined to present it as a “per se” list of non-qualifying conditions. 73 Fed. Reg. at 7885-88.
With regard to the definition of “continuing treatment,” the proposed rule specifies that the two visits to a health care provider must occur within 30 days of the beginning of the period of incapacity barring extenuating circumstances. The DOL requests comment on whether this 30-day time period should also apply to the alternate definition of “continuing treatment” which requires treatment on at least one occasion that results in a regiment of continuing treatment. 73 Fed. Reg. at 7887.
The current definition of a chronic serious health condition requires periodic visits for treatment but does not define “periodic.” The proposed rule defines “periodic” as twice or more per year and seeks comment on whether this definition is appropriate. 73 Fed. Reg. at 7888.
The proposed rule specifically includes physician assistants as health care providers. 73 Fed. Reg. at 7891.
Handling of Holidays
The statute grants employees 12 workweeks of leave which the DOL interprets to mean 12 weeks during which the employee would normally be required to work. Questions have arisen regarding the proper handling of holidays. The proposed rule clarifies that if the employee needs less than a full week of FMLA leave, any holiday that the employee would not ordinarily be required to work is not counted against FMLA. If, however, an employee needs a full week of leave in a week with a holiday, the holiday hours will count against the employee’s FMLA entitlement. 73 Fed. Reg. at 7892.
The proposed rule clarifies that an employee taking medically necessary intermittent leave must make a “reasonable effort” rather than an “attempt” to schedule foreseeable leave so as not to disrupt unduly the employer’s operations. 73 Fed. Reg. at 7892.
Current rules allow for the transfer of an employee to an alternative position during scheduled intermittent and reduced leave. The DOL invites further comment on whether the current regulations make sense and if the rule should be modified to include the temporary transfer of employees using unscheduled or unforeseeable intermittent leave. 73 Fed. Reg. at 7893.
Increments of Leave
The proposed rule continues to allow leave to be taken in the shortest period of time used by an employer’s payroll system. The Department seeks comment, however, on whether it may be more appropriate to extend FMLA protection to the entire period of leave taken from the employee’s assigned schedule in situations in which it is physically impossible for an employee using intermittent leave or a reduced schedule to commence work mid-way through a shift for example, a railroad conductor or flight attendant. 73 Fed. Reg. at 7893.
Application of FMLA Leave to Overtime Hours
Under the proposed rule, missed overtime must be counted against FMLA leave if the employee would otherwise be required to report for duty but for the taking of FMLA leave. 73 fed. Reg. at 7894.
Factors Affecting Leave Benefits
Substitution of Paid Leave
The Department invites comment on their proposal which clarifies that the terms and conditions of an employer’s paid leave policies, such as full day leave increments, notice requirements, etc., apply and must be followed by the employee in order to substitute any form of accrued paid leave. The proposed rule also clarifies that the term “substitution” means that the employer’s paid leave and unpaid FMLA leave run concurrently. The proposed rule requires that an employer make the employee aware of any additional requirements for use of paid leave and that the employee remains entitled to FMLA leave even if the terms of the paid leave are not met. Under the proposed rule, employers may require sufficient FMLA certification even when the employee is substituting the employer’s paid leave. 73 Fed. Reg. at 7895-98.
Supplementing Disability Benefits
When an employee receives disability benefits during FMLA leave, the employer and employee may agree to run paid leave concurrently with FMLA in order to supplement disability benefits. 73 Fed. Reg. at 7896-97.
Attendance and Incentive Awards
Employers who maintain incentive programs, such as perfect attendance awards, are specifically allowed under the proposed rule to disqualify an employee who does not reach a goal, such as perfect attendance, due to an FMLA absence. The employer must, however, treat non-FMLA absences in the same way. 73 Fed. Reg. at 7898.
DOL proposes that any employee voluntarily performing a light duty assignment retains their rights to FMLA leave and to job restoration. Under the proposal, the employee retains the choice to refuse a light duty assignment and remain on unpaid FMLA leave. The DOL does not propose that employees be required to accept light duty assignments in lieu of FMLA leave. 73 Fed. Reg. at 7900-01.
Settlement of Past Claims
The DOL proposes to make clear that employers and employees may voluntarily agree to settle past claims without first obtaining the permission of the DOL or a court. 73 fed. Reg. at 7901.
The proposed rule suggests that components of current notice provisions be combined into a comprehensive section addressing general notice, including the ability to post electronically; notice that an employee meets the eligibility requirements; notice that leave has been designated as FMLA; and notice of the employee’s consequences of failing to provide notice of the need for leave.
The rule provides a draft written eligibility notice that is to be given within five days of the request of the employer receiving knowledge that the leave may qualify as FMLA.
The NPRM proposes to clarify that an employer has an obligation to timely designate leave but the designation can be made retroactively after the five-day period so long as the employee is not harmed by the delay. If an employer fails to timely designate leave and the employee established that he or she has suffered harm, employers may be liable for damages or equitable relief as a result of the violation. The proposal also indicates that when leave qualifies as FMLA, an employer and em0ployee can mutually agree to retroactively designate it as such. 73 Fed. Reg. at 7901-07.
The proposed rule retains the requirement that 30 days advance notice be provided for foreseeable leave. If not provided, the rule provides that employees must respond to a request from an employer to explain why it was not practicable to provide 30 days notice when leave is foreseeable.
The NPRM clarifies that when leave is unforeseen, the requirement to “notify as soon as practicable” requires that notification be done promptly. In addition, an employee must comply with the employer’s usual procedures for calling in and requesting unforeseeable leave except when extraordinary circumstances exist.
Regarding the content of notice, the DOL proposes the notice must contain sufficient information that the employee is seeking FMLA leave. DOL retains the requirement that an employee comply with the employer’s usual notice and procedural requirements for calling in absences and requesting leave unless extraordinary circumstances exist. It is not enough, under the proposed rule, for the employee to call in and state he or she is “sick.” Instead, the employee must indicate an inability to perform essential functions, identify the anticipated duration of the absence, and indicate whether plans exist to visit a health care provider or receive continuing treatment.
The proposal does not require employees to specifically name FMLA but the DOL seeks comment on whether that should be required in circumstances in which an employee has previously provided sufficient notice and is subsequently providing notice of dates of leave due to the condition that were changed. Failure to properly notify employers of absences may cause a delay or denial of FMLA protections. 73 Fed. Reg. 7907-11.
The proposed rule requires that employers request a medical certification no later than five business days after an employee gives notice of the leave or, in the case of unforeseen leave, within five business days after the leave has commenced. Employees then have 15 calendar days to submit a medical certification.
A certification will be considered incomplete under the NPRM if one or more of the entries are not completed. The certification will be considered insufficient if the information provided is vague, ambiguous, or not responsive. To remedy an incomplete or insufficient certification, the employer must specify, in writing, the information needed to remedy the certification. The employee is then given seven calendar days to remedy the identified deficiencies which must be extended if the employee is unable to obtain the additional information despite good faith and diligent effort. The employee must provide a complete certification or give the health care provider authorization under the Health Insurance Portability and Accountability Act (HIPAA). If the employee is unable to remedy an incomplete or insufficient certification, the employer may deny FMLA leave.
The DOL also proposes a revised medical certification Form WH-380 and seeks feedback of its adequacy and whether multiple forms would be preferable. 73 Fed. Reg. 7911-16.
The DOL reorganizes the section dealing with recertification, reinforces that an employer may not request recertification until the minimum duration for the period of incapacity is elapsed but adds that an employer may request recertification no more than every 30 days and in connection with an absence. The proposal allows employers to ask for the same information when obtaining recertification as they can to obtain original certification.
For serious medical conditions expected to last an extended period of time, a recertification may be requested every six months. As part of the recertification process, an employer may provide health care providers with a record of the em0ployee’s absences and inquire whether the pattern is consistent with the serious health condition. The DOL retains the prohibition on second and third opinions on recertification, but they seek comment on whether this prohibition should be retained. 73 Fed. Reg. 7918-20.
The proposed rule allows an employer to make contact with an employee’s health care provider, without the employee’s permission, to verify that the medical certification is authentic so long as the employee is first given the opportunity to cure deficiencies with the certification. Employers seeking clarification of the substance of a certification must comply with the Health Insurance Portability and Accountability Act (HIPAA). If an employee does not provide HIPAA consent and the employer has a legitimate need to clarify, FMLA leave may be denied. 73 Fed. Reg. at 7916-18.
Certification of Fitness for Duty
An employer is permitted under the proposed rule to require an employee to furnish a fitness for duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist. The employer may deny FMLA coverage for the period at issue if a medical certification is not provided in a timely manner. The employee must provide a complete certification or give the health care provider authorization under HIPAA to provide information directly to the employer for fitness for duty in the same manner as the initial certification. Employers may contact an employee’s health care provider consistent with what they can do for original certification. 73 Fed. Reg. 7920-22.
Military Family Leave
Military Leave Provisions
The remainder of the proposed rule seeks comment of military family leave under provisions of the National Defense Authorization Act of FY 20008 which amended the FMLA to provide leave to eligible employees of covered employers to care for wounded service members and because of a “qualifying exigency” arising out of active duty or an impending call to active duty. “The provisions of this amendment providing for FMLA leave to care for a covered servicemember became effective on January 28, 2008, when the law was enacted. The provisions of this amendment providing FMLA leave due to a qualifying exigency arising out of a covered family member’s active duty (or call to active duty) status are not effective until the Secretary of Labor issue regulations defining ‘qualifying exigencies.’” 73 Fed. Reg. 7876.