Department of Labor Proposes Overhaul of FMLA Rules

The U.S. Department of Labor ("DOL") has recently issued a comprehensive set of proposed new regulations under the Family and Medical Leave Act ("FMLA"). This is the first comprehensive update to the FMLA rules since they were first issued in 1995 following passage of the FMLA in 1993. The DOL is seeking public comment on the proposed rules until April 11, 2008, and plans to issue final new rules by the end of the year. (This FMLA activity is distinct from the addition of two new categories of FMLA leave, for employees with family in the military, that was the subject of our February 8, 2008, Client Update.)

The DOL's proposal would replace all the existing FMLA rules with a new set of rules with new titles, revised wording and somewhat different numbering. Many of the proposed changes involve fairly subtle refinements to or clarifications of the existing FMLA rules. However, several of the proposed changes could have significant operational impact on employers and have already attracted comments, both positive and negative, from members of Congress. Some of the more notable changes proposed by the DOL are

• Currently, one scenario that qualifies as a "serious health condition" under the FMLA is a period of incapacity for more than three days, combined with receiving treatment from a health care provider on two or more occasions. Courts have had differing interpretations of when the two or more treatments must occur. The proposed rules would require that the two or more treatments occur within 30 days of the start of the period of incapacity, unless extenuating circumstances exist.
• Currently, another scenario that qualifies as a "serious health condition" is a chronic health condition that requires "periodic visits" to a health care provider. The proposed rules would require that the employee visit a health care provider at least two times per year in connection with the chronic condition.
• The existing rules allow an employee taking FMLA leave for an unforeseeable reason to give notice to the employer up to two days after the leave starts. In the case of leave used on an intermittent basis for partial-day or single-day absences, this means that the employee can take such leave on an unscheduled basis without notifying the employer that the absence is FMLA leave until after he or she returns to work. Under the proposed rules, employers could require employees taking unscheduled intermittent leave to follow generally applicable reporting requirements for absences, such as requiring notice of the need for leave at least prior to the start of the work shift in all but the most extraordinary circumstances.
• The existing rules provide that only a health care provider working for the employer (not a member of management or human resources) may contact the employee's health care provider to authenticate or obtain clarification of a medical certification. The proposed rules would allow any representative of the employer to make such contact and would require the employee to give permission to his or her health care provider to talk directly to the employer.
• The existing rules bar an employer from requiring a fitness-for-duty exam for employees taking intermittent leave. The proposed rules would allow an employer to require a fitness-for-duty exam for an employee taking intermittent leave where reasonable safety concerns exist regarding the employee's ability to perform his or her job duties based on the employee's serious health condition.