The Department of Labor published proposed changes to the current FMLA regulations Feb. 11, 2008. Employers, trade associations, unions and other interested parties may submit comments on the proposals until April 11, 2008. 

Coinciding with the 15th anniversary of the FMLA’s enactment, the Department’s proposed regulations are intended to: respond to court decisions that had invalidated some of the FMLA regulations; provide additional clarity for workers and employers; and address areas where the Department had received repeated complaints about the existing regulations. The proposed changes were based in part on the Department’s own difficulties with administering the current regulations, as well as more than 15,000 comments received in response to the Department’s request for comments on the existing FMLA regulations in December 2006. 

The Department’s proposed changes address a few of employers’ concerns with existing regulations, but fall short of proposing significant change in an area of concern to employers: the use of intermittent leave. Once the comment period has closed, the Department will assess the public responses and draft final revisions to the FMLA regulations. How closely the final regulations will resemble the current proposal remains to be seen, although it should be noted that the Department made widespread changes to its proposed regulations before issuing final regulations under the Fair Labor Standards Act in 2004—the Department’s last major regulatory change. 

Summary of Proposed Changes

  • Ragsdale Decision – In the first FMLA case to reach the Supreme Court, Ragsdale v. Wolverine Worldwide (2002), the Court invalidated the FMLA’s regulation that required an employer to give additional weeks of FMLA-protected leave if it failed to timely notify an employee that an absence from work was being deducted from the employee’s 12-week FMLA leave entitlement. The Department proposes to modify the regulations to eliminate the penalty that required providing additional FMLA-protected leave, without specifying any particular remedy for failing to give timely notice. Even with the proposed change, if an employer fails to timely designate an absence as FMLA-qualifying and the employee is able to show that he or she was misled or confused about the amount of FMLA leave available, the employee could bring a claim for backpay and reinstatement if terminated for exceeding the 12-week leave entitlement. 
  • Light Duty Issues – At least two courts had previously ruled that time spent on “light duty” status following an FMLA leave should count against an employee’s 12-week FMLA entitlement. The proposed regulations reject these court decisions and state that light duty work does not count against an employee’s FMLA leave entitlement. 
  • Waiver of Rights – The Department of Labor clarified its position that employees may settle FMLA claims without formal court or Department approval. This clarification, although not a change in official policy, was necessary because several cases have interpreted the Department’s current rules to prohibit employers from enforcing employees’ releases of FMLA claims without court or agency supervision. 
  • Serious Health Condition – The proposed regulations make very little change to the definitions of a qualifying serious health condition. The proposed regulations do state that FMLA leave predicated upon two visits to a health care provider must entail two visits to the health care provider within a 30-day period. Under the current regulations, there is no 30-day window requirement. In addition, for chronic serious health conditions, the Department proposes to impose a new requirement that an employee must visit a health care provider at least twice per year. 
  • Substitution of Paid Leave – The Department proposes to modify the substitution of paid leave provisions of the FMLA regulations to explicitly state that personal leave or paid time off may be utilized in addition to paid vacation. Otherwise, no substantive changes are proposed. 
  • Perfect Attendance Awards – The proposed regulations reverse the Department’s current position on perfect attendance awards, and would allow employers to deny perfect attendance awards to employees who take FMLA leave. However, FMLA leave would still be excluded from consideration under no-fault attendance policies. 
  • Employer Notice Obligations – The proposed regulations extend from two business days to five business days, the amount of time an employer has to designate FMLA leave and to determine FMLA eligibility. 
  • Medical Certifications – The proposed regulations state that, if an employer deems a medical certification to be incomplete or insufficient, it must return the certification to the employee and specify in writing what information is lacking. The employer must then allow the employee seven calendar days to cure the deficiency, with certain hardship exceptions. The proposed regulations would also allow, for the first time, direct contact between employer representatives and an employee’s health care provider for purposes of clarification and verifying the authenticity of medical certification forms. Employers would still be prohibited from asking health care providers for additional information, beyond that required by the Department’s medical certification form. Under the proposed regulations, employees would also be required to waive HIPAA medical privacy restrictions, to the extent of the information required by the medical certification form, or forfeit their eligibility for FMLA leave. The Department has also proposed to update its medical certification form (WH-380) to allow, but not require, a health care provider to provide a diagnosis of an employee’s serious health condition. 
  • Employee Call-Out Procedures – In one of the most significant proposed changes, the Department would allow an employer to enforce its usual and customary call-off procedure for employees exercising intermittent leave. This has been a major source of employer frustration and could provide at least some limited relief to the scheduling problems posed by intermittent leave. 
  • Fitness-for-Duty Certifications – The proposed regulations would make two changes to the fitness-for-duty certification process. First, an employer would be able to provide a copy of an employee’s job description to an employee’s health care provider and require that the provider certify the employee’s ability to perform the essential job functions of the employee’s position. Second, where reasonable job safety concerns exist, an employer would be able to require a fitness-for-duty certification before an employee could return to work from an intermittent leave.