Labor & Employment Law

: Strategic HR Lawyer

New Proposed Regulations to the Family & Medical Leave Act

The US Department of Labor recently issued proposed revised FMLA regulations.  The new regulations, subject to a comment period, comprise well over 400 pages - sufficient to cure insomnia.  Here are few changes of note while all the dust begins to settle:

-          Serious Health Condition - Where leave involves more than three consecutive days plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity (subject to certain exceptions). 

-           ‘Periodic treatment’ is defined as requiring treatment two of more times a year.

-          Includes separate regulations for leaves as a result of treatment for pregnancy, substance abuse and adoption/foster care. 

-          Eligibility - The DOL is looking to further define a break in service to determine the eligibility for FMLA.

-          Health Care Providers - Adds Physician Assistants as recognized health care providers.

-          Amount of Leave - Addresses how an employer should handle the situation when a holiday falls during the employee’s leave.

-          Paid Leave Substitution –Proposes  two substantive changes to the current regulations regarding paid leave:

o   The DOL clarifies that "substitute" means to run concurrently with respect to Paid time off. 

o   The proposed regulations seek to remove any distinction between sick leave and vacation leave in connection with an employer policy requiring substitution.

-          Return to Work & Bonuses - Under the new regulations, an employee must meet a specific “goal” in order to be provided a bonus.  If he fails to meet that goal due to FMLA leave, he can be denied the bonus as long as individuals who were on non-FMLA leave were also denied the bonus.

-          Notice Requirements - We should be expecting a new poster soon.

-          Employer Notice to Employee – in order to designate leave as qualifying for FMLA, the employer would now have 5 days instead of two.

-          Foreseeable Leave – Employers can require employees to explain why they failed to give notice at least 30 days in advance.  And, if not an emergency, if the need for the leave is foreseeable leave, the employee should provide notice of the need the same or next day.  With respect to unforeseen leave, the regulations indicate a narrowing of this exception.

-          Medical Certification - Employee consent to contact the health care provider to verify medical certification would no longer be required and the regulations would permit an employer to contact the employee's health care provider directly without having to use a health care provider. 

For those interested in an insomnia cure, this link to the USDOL FMLA Proposed Regulations should suffice as a fine cure.

-     

Full post as published by Strategic HR Lawyer on February 15, 2008 (boomark / email).