WorldatWork Wants Your Feedback on FMLA Proposed Regs (March 6, 2008)
WorldatWork Wants Your Feedback on FMLA Proposed Regs
March 6, 2008—As I have blogged previously, the U.S. Department of Labor released new proposed Family and Medical Leave Act (FMLA) regulations on Feb. 11, 2008. WorldatWork applauds the DOL for moving forward with the regulations and attempting to clarify and improve some of the FMLA procedures. The proposed regulations run over 100 pages long and, in one of the most visible changes, does away with the question-and-answer format in an effort to consolidate similar issues.
Highlights of the proposed changes to the regulations include:
With regard to “serious health condition,” the proposed regulations do not change the definitions, but do suggest that the two visits to a health care provider required under one definition of "serious health condition" occur within 30 days of the period of incapacity.
The proposed rule defines “periodic visits” for chronic, serious health conditions as at least two visits to a health care provider per year.
A proposal that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence unless there are unusual circumstances.
Clarification that an employer may request medical recertification of an employee every six months.
Allows direct contact between the employer and the health care provider for purposes of clarifying a medical certification form as long as the requirements of the HIPAA medical privacy regulations are met.
Clarifies that, as long as an employer treats all leave identically, a person on FMLA leave may not be eligible for a perfect attendance award.
Proposes two changes to the fitness-for-duty certification process:
An employer may require that the certification address the employee’s ability to perform the essential functions of the employee’s job.
Where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.
Clarification that time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement, as well as changes so that reinstatement rights are not affected by a light-duty assignment. If an employee is voluntarily performing a light-duty assignment, the employee would not be considered as being on FMLA leave.
Reinforce DOL’s longstanding position that employees may voluntarily settle their FMLA claims without court or Department approval.
Employees may use FMLA leave because of any qualifying exigency arising out of the fact that a covered family member is on active duty or called to active-duty status. The DOL is asking for specific feedback on how to define “qualifying exigency.”
In 2005, WorldatWork released the results of a member survey on FMLA Perspectives and Practices. Because of the importance of getting good, up-to-date feedback, WorldatWork is again conducting a member survey with particular emphasis on the new proposed FMLA regulations. Members can participate by going to our homepage and clicking the link at the top of the page.
Within the survey, there are some open-ended questions. Please share your thoughts and perspectives regarding these items. If you prefer, you can forward your comments directly to me. All information collected will be used in the aggregate to form our comment letter; no company names will be identified.
WorldatWork will submit a comment letter on behalf of its members, but we also encourage you to submit your own comments. The deadline to submit comments is April 11, 2008. You can read the proposed rule, as well as submit a comment, online.
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