THE PROPOSED FMLA
REGULATIONS AND THEIR EFFECT ON YOU—
PART V: COMMENTS REQUESTED BY THE DOL Over the last several weeks, we have been providing summaries of a few of the proposed revisions and clarifications contained in the Department of Labor's ("DOL") proposed revisions to the regulations implementing the Family and Medical Leave Act of 1993 ("FMLA"). When it issued the proposed regulations, the DOL also specifically requested comments on a number of subjects. This week, we outline some of those subjects. Next week, we will continue the series by addressing the comments requested by the DOL with respect to the new military family leave amendments to the FMLA. Please note that employers are free to comment on areas about which the DOL did not specifically request comments.
The
DOL is accepting comments on the proposed regulations
until
NOTICE
REQUIREMENTS
·
Employee
notice—Employee who has previously provided notice of need for leave: The current and proposed regulations do not
require an employee to mention the FMLA specifically
when initially providing notice of his or her need for leave. The DOL seeks
comment on whether there should be a different notice standard that would
require an employee to assert FMLA rights expressly
when he or she has previously provided sufficient notice of a serious
health condition necessitating leave and is subsequently providing notice of
dates of leave due to the condition that were either previously unknown or
changed. This would directly affect
intermittent leave. If employees must specifically
assert their FMLA rights after having provided notice
of or a certification for intermittent leave, employers will be better able to
track the use of intermittent leave.
·
Employer
notice—Substitution of paid leave:
Under the current regulations, employers may enforce their normal rules
regarding the use of paid medical and sick leave when such leave is substituted
for unpaid FMLA leave. They may not, however, enforce their
normal rules regarding the use of other kinds of paid leave—such as paid
vacation leave or paid personal leave—when such leave is substituted for unpaid
FMLA leave, if they are more stringent than the FMLA. In the
preamble to the proposed regulations, the DOL
explains that this distinction between paid medical/sick leave and other types
of leave has created tension with the plain language of the FMLA,
which states that nothing in the FMLA shall be
construed to discourage employers from adopting paid leave policies that are
more generous than policies that comply with the FMLA’s
requirements. The DOL
also explains that nothing in the FMLA requires
employers to treat employees who take FMLA leave more
favorably than employees who do not and that nothing in the FMLA
entitles employees who take FMLA leave to benefits to
which they would not have been entitled had they not taken leave. Based on this, the DOL
has concluded that the distinction drawn between paid medical/sick leave and
other types of paid leave in the current regulations does not adequately
reflect Congressional intent regarding the substitution of paid leave.
Therefore, the proposed regulations allow employers
to require employees to comply with the terms and
conditions of their policies for all types of paid leave, not just
medical and sick leave. They also provide
that, when responding to an employee's request for FMLA
leave, the employer must, among other things, notify the employee of any
additional requirements for the use of paid leave and notify the employee that
he or she remains entitled to unpaid FMLA leave even
if he or she chooses not to meet the terms and conditions of the employer's
paid leave policies. The DOL seeks comment on whether this proposal
"appropriately implements Congressional intent regarding substitution of
paid leave." For a complete
explanation of this proposed change and its effect on you, see our previous
article, THE PROPOSED FMLA REGULATIONS AND THEIR EFFECT ON YOU—PART
II: COVERAGE, ELIGIBILITY, AND TREATMENT OF BENEFITS.
·
Employer
notice—General requirements: The
proposed regulations restructure the DOL's guidance
on the notice employers are required to give to employees regarding their FMLA rights. Specifically,
the proposed regulations break down employers' notice requirements into three
categories: general notice, eligibility notice, and designation notice. The proposed regulations also jettison the
concept of "provisional designation," which is contained in the
current regulations. The DOL seeks comment on whether the proposed regulations on
employer notice will effectively communicate the required information to
employees while also reducing the administrative burdens associated with the
current employer notice process. The DOL also has asked for comment on "all aspects"
of the proposed notice provisions. You
can find a more complete description of all the proposed provisions relating to
employer notice and designation of leave in our previous articles, THE
PROPOSED FMLA REGULATIONS AND THEIR EFFECT ON YOU—PART
I: MODIFIED NOTICE REQUIREMENTS and THE PROPOSED REGULATIONS AND THEIR EFFECT ON YOU—PART
IV: QUALIFYING REASONS FOR LEAVE, DESIGNATION OF LEAVE, AND RELEASE OF CLAIMS.
·
Employer
posting requirements: The
proposed regulations allow an employer to comply with the requirement to post a
general notice of FMLA rights by utilizing electronic
posting, so long as the information is generally available to all applicants
and employees. In the preamble to the
proposed regulations, the DOL explains that this
requirement means that, with respect to employees, all employees must have
access to company computers that post the information in a conspicuous
manner. The DOL
seeks comment on whether this electronic posting alternative is considered
workable and will ensure that applicants and employees receive the required
information regarding the FMLA.
·
Timing
of employer notice: The proposed
regulations change the general period of time for an
employer to notify an employee of whether or not an employee is eligible for FMLA leave from 2 business days to 5 business days. The DOL seeks
comment on whether this timeframe will both impart sufficient information to
employees in a timely manner and be workable for employers.
·
Employer
notice of designation of FMLA leave: The proposed regulations require employers to
provide more information than is required by the current regulations when
notifying an employee of whether or not leave has been designated as FMLA leave. They
also change the general time period for an employer to make such notification
from 2 business days to 5 business days.
In addition, the proposed regulations require employers to inform
employees of the number of hours, days, or weeks that will be counted against
the employee's FMLA entitlement when providing this
notice. If it is not possible to provide
the number of hours, days, or weeks that will be counted against the employee's
FMLA entitlement (such as in the case of
unforeseeable intermittent leave), the employer must provide such information
every 30 days to the employee if leave is taken during the 30-day period. As we explained in our previous article, THE PROPOSED REGULATIONS AND THEIR EFFECT
ON YOU—PART
IV: QUALIFYING REASONS FOR LEAVE, DESIGNATION OF LEAVE, AND RELEASE OF CLAIMS,
this part of the proposal imposes a significant new reporting requirement on
employers. The DOL seeks comment on whether these
proposed revisions adequately protect employee rights and are workable for
employers. You can find a complete
description of the proposed provisions relating to the notice employers must
provide regarding the designation of leave in our previous articles, THE
PROPOSED FMLA REGULATIONS AND THEIR EFFECT ON YOU—PART
I: MODIFIED NOTICE REQUIREMENTS and THE PROPOSED REGULATIONS AND THEIR EFFECT ON YOU—PART
IV: QUALIFYING REASONS FOR LEAVE, DESIGNATION OF LEAVE, AND RELEASE OF CLAIMS.
CERTIFICATION
·
Medical
certification—Employer obligation to inform employee of failure to return
medical certification: The
current regulations provide that, if the employer requests a medical
certification of the need for leave, an employee must return the certification
within 15 calendar days, unless it is not practicable. The proposed regulations do not change this
provision. However, the DOL is seeking comment on whether it should modify the
current regulations to provide that an employer must notify an employee if the
certification has not been returned after 15 days and give the employee another
7 calendar days to provide the medical certification. It is important to note that, if the DOL elects to make this modification, employees would
effectively have 22 days to return their medical certification forms (as
opposed to the current 15 days).
·
Medical
certification form: With the
proposed regulations, the DOL has also proposed a new
form for medical certifications. Like
its predecessor, it can be used for all types of FMLA
leave. The DOL
is seeking comment on whether it should create multiple medical certification
forms by breaking the current form into separate forms for intermittent and
block leave and/or separate forms for leave for the employee and leave for the
employee's family member. This proposed
modification is intended to benefit health care providers and could assist
employers in understanding the type of leave being requested. However, it also will result in more
paperwork for employers to provide to employees when informing them of their FMLA rights.
·
Reinstatement
after leave—Fitness-for-duty certification: The current regulations provide that a
fitness-for-duty certification need only be a "simple statement" of
an employee's ability to return to work and that, although an employer may take
steps to clarify the certification, "no additional information may be
acquired." The proposed regulations
delete the "no additional information" language, but do not explain
what information may be acquired. The DOL is seeking comment on the information that can be
obtained and the process that employers may follow in connection with a
fitness-for-duty certification. For
example, the DOL is seeking comment on whether an
employer may seek additional information or a second- or third-opinion when it
has reason to doubt the validity of a fitness-for-duty certification. It is also seeking comment on whether an
employer should be allowed to require an employee returning from FMLA leave to undergo a return-to-work physical conducted
by the employer's physician (so long as the employer regularly requires such a
physical for all employees returning to work) and whether an employer should be
allowed to challenge a fitness-for-duty certification and delay the employee's
return to work pending receipt of a second opinion if the employer has a
reasonable basis to believe that the employee may not be able to safely return
to work and perform all the essential functions of his or her job.
·
Return to work after intermittent leave—Fitness-for-duty certification: The current regulations do not allow an
employer to require a fitness-for-duty certification from an employee who is
returning from intermittent leave. The
proposed regulations allow an employer to require such a certification every 30
days if the employee has used intermittent leave during that period and
reasonable safety concerns exist. The DOL has stated that it is aware that this new language
places a potential burden on employees.
The DOL is seeking comment on ways to minimize
this burden and asks whether its current proposal "strikes the appropriate
balance."
·
Medical
certifications from foreign health care providers: The current regulations provide that, under
certain circumstances, an employer must accept medical certifications and
second- and third-opinions from foreign health care providers. The proposed regulations do not change this
language. The DOL,
however, is seeking comment on whether changes to the regulation would allow
for better and more efficient authentication of certifications from foreign
health care providers.
·
Recertification—Timing: The proposed regulations keep the current
rules on the timing of requests for recertification. However, the proposal adds language stating
that, in all cases, recertifications may be
requested every six months in connection with an absence by the
employee. The preamble to this provision
explains that this language is intended to apply in "circumstances in
which the certification indicates that the condition will last for an extended
period of time." The preamble also
defines "extended period of time" to include "not only specific
months or years (e.g. one year) but
certified durations of 'indefinite,' 'unknown,' or 'lifetime.'" As we explained in our previous article, THE PROPOSED FMLA
REGULATIONS AND THEIR EFFECT ON YOU—PART
III: CERTIFICATION, the reference to "indefinite,"
"unknown" or "lifetime" as an "extended period of
time" is a negative development for employers. The DOL is
requesting comment on this new rule.
·
Recertification—Second-
and third-opinions: The proposed
regulations keep the current prohibition on second- and third-opinions for recertifications. The
DOL is seeking comment on whether this prohibition
should be maintained in light of the proposed changes to the rules regarding
the timing of recertifications, discussed above.
COVERAGE,
ELIGIBILITY, AND QUALIFYING REASONS FOR LEAVE
·
Public
agency coverage: Under the
current regulations, the test for determining whether a public agency is a
separate and distinct entity (and therefore a separate employer for determining
employee eligibility) or simply a part of another public agency is the
"Census of Governments" published by the U.S. Bureau of the
Census. The proposed regulations do not
change this test. However, the DOL seeks comment on whether the test should be amended to
conform with the test set forth in the regulations
implementing the Fair Labor Standards Act ("FLSA"),
under which listing in the Census of Governments is just one factor in
determining what constitutes a separate public agency.
·
Definition
of "serious health condition"—Continuing treatment: Under the current regulations, an employee
may have a "serious health condition" (and be eligible for FMLA leave) if the employee's condition involves
"continuing treatment" by a health care provider. One of the definitions of "continuing
treatment" is incapacity for more than 3 consecutive calendar days plus
treatment by a health care provider on at least one occasion which results in a
regimen of continuing treatment under the supervision of the health care
provider. The proposed regulations do
not change this definition and impose no time limitation on when the visit to
the health care provider must occur. In
the preamble to the proposed regulations, the DOL
states that its experience suggests that a time limitation is unnecessary
because the doctor visit which results in a regimen of continuing treatment
usually occurs close in time to the period of incapacity. It also states that adding a time limitation
(such as a 30-day time period) might extend the time period for receiving the
regimen of treatment beyond what is now the current practice. The DOL is,
however, seeking comments on this approach and whether this provision should be
changed.
·
Definition
of "serious health condition"—Chronic
condition: Under the current
regulations, the definition of "chronic condition" requires
"periodic" visits to a health care provider for treatment. The term "periodic" is, however,
not defined. The proposed regulations
define the term "periodic" to mean at least twice a year. The DOL seeks
comment on this definition of "periodic."
MISCELLANEOUS
· Light duty work: Under both the current regulations and the proposed regulations, an employee may voluntarily accept a light duty position while recovering from a serious health condition. The current regulations provide that, “[i]n such a circumstance the employee's right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of ‘light duty.’” The proposed regulations delete this quoted language. In the preamble to the proposed regulations, the DOL states that this change is intended to ensure that employees retain their right to reinstatement for a full 12 weeks of leave instead of having the right diminished by the amount of time spent in a light duty position. The DOL also states that this change does not require employees to accept light duty work and is not intended to discourage employers and employees from engaging in light duty work arrangements. The DOL, however, seeks comment on whether the deletion of this language from the regulations may negatively impact an employee's ability to return to his or her original position from a voluntary light duty position.
·
Intermittent
or reduced schedule leave—Transfer to alternative position: The current regulations allow an employer to
transfer an employee to an alternative position if the employee needs
intermittent or reduced schedule leave that is foreseeable. The current regulations do not offer this
option for an employee who needs intermittent or reduced schedule leave that is
unforeseeable. The proposed regulations
make no substantive changes to these provisions. However, the DOL is
seeking comment on whether this provision should be changed and, if so, how.
·
Intermittent
or reduced schedule leave—Minimum increment: The current regulations do
not provide a minimum increment for FMLA leave. The proposed regulations do not change this
provision. However, the DOL is seeking comment on whether an exception should be
made to allow an entire shift to be designated as FMLA
leave and counted against an employee's FMLA
entitlement when physical impossibility prevents an employee who is using
intermittent or reduced schedule FMLA leave from
commencing work mid-way through a shift—such as an airline flight attendant who
cannot begin work mid-way through a flight.
I/2086937.1
If you have questions related to these proposed regulations,
please contact a member of Ice Miller's Labor
and Employment Practice Group.
This publication is intended for general information
purposes only and does not and is not intended to constitute legal
advice. The reader must consult with legal counsel to determine how laws
or decisions discussed herein apply to the reader's specific circumstances.