Legislative Update
What Changes are Ahead for the Family and Medical Leave Act?
In what could amount to some significant changes to the Family and Medical Leave Act, the United States Department of Labor recently issued its long-promised proposed new regulations.
While I have tried to summarize some of the key points, it is important to remember that these are merely proposed changes; therefore, I do not recommend modifying your current FMLA policies at this time. Rather, changes should be made once the regulations are finalized.
Nonetheless, I thought it would be important to discuss some of the proposed changes now, as the DOL is seeking comments on the proposed regulations before they are finalized. The following are some highlights of the proposed changes:
GENERALLY
New Forms - The DOL has revamped the employee leave request notice and medical certification forms. Among other things, the proposed regulations explicitly provide that a health care provider can include the employee's (or family member's) diagnosis on the medical certification.
New deadlines - The current regulations require an employer to designate leave as FMLA-covered within two business days of the request, or of the time that the employer receives enough information to know that the leave is FMLA-qualifying. Under the proposed regulations, this deadline would be expanded to five business days. The proposed regulations would maintain the current 15-day deadline for employees to provide a medical certification, but they would also require employers to provide an additional seven calendar days to cure "incomplete" or "insufficient" medical certifications following the expiration of the original 15-day period. If the employee failed to meet the 15-plus-7 day deadline, the employer would normally be able to deny FMLA leave. Further, the failure to return a medical certification within the 15-day deadline would normally permit employers to deny the leave at the expiration of the 15-day period.
COMMUNICATIONS WITH EMPLOYEES
Designations of leave - The proposed regulations would incorporate the Supreme Court's decision in Ragsdale v. Wolverine World Wide, Inc., which provides that under normal circumstances employees do not get a "windfall" of extra FMLA leave just because the employer failed to designate their leave properly. Under the proposed regulations, such a "windfall" applies only if the employee can show that he or she was actually prejudiced by the failure to designate the leave as being covered under the FMLA.
On a less positive note, the proposed regulations would require the designation to include the number of days and hours that had been designated as FMLA-qualifying, and if that information is not immediately available, the employer would have to inform the employee every 30 days that the leave had been designated and the amount of FMLA time that had been designated during that 30-day period.
ABSENTEEISM
Attendance bonuses - One of the most disliked aspects of the current regulations has been its requirement that attendance bonuses be provided to employees whose absences during the relevant time period were FMLA-covered. The proposed regulations recognize the negative impact that this has on the workplace, and allows employers to deny attendance bonuses, as well as other types of bonuses, to employees who were out for FMLA-covered reasons; however, there is a big catch - if the employer pays attendance bonuses to employees who are absent for other reasons (including vacation), then the employer must pay the bonus to employees who are absent because of FMLA leave.
Call-in procedures - The proposed regulations specifically provide that employers may lawfully require employees on FMLA leave to use the employer's absence reporting procedures and may be held accountable for failing to do so. This is ambiguous in the current regulations.
MEDICAL ISSUES
HIPAA clarification - The proposed regulations provide some guidance on the interaction of HIPAA privacy regulations and the FMLA, and also provide that an employee seeking "serious health condition" leave who refuses to provide a HIPAA authorization to his health care provider may be denied leave.
Medical certifications - In addition to changing the medical certification form, the proposed regulations would allow an employer to provide with the certification form a listing of the essential functions of the employee's job, and to ask the health care provider to indicate which specific essential functions the employee cannot perform.
Light duty - On the negative side for employers, the current regulations say that time spent performing "voluntary" light duty may be counted toward the employee's FMLA entitlement. The proposed regulations eliminate this provision, and the comment section indicates that the DOL removed it deliberately. Therefore, the "silence" of the proposed regulations can be construed as meaning that this option is no longer permitted.
Communication with health care provider. The proposed regulations allow direct communication between employer and health care provider for this purpose, so long as the employee has provided a HIPAA authorization to the health care provider. (And, as stated above, if the employee refuses, the employer may lawfully deny leave to the employee.) The employee must also have been given the 15-plus-7 opportunity to cure any "incomplete" or "insufficient" areas on the medical certification form before the employer may communicate with the health care provider.
Fitness for duty certifications -The current regulations do not provide an employer with any recourse if it questions whether an employee with a fitness-for-duty certification is really able to return to work safely. The proposed regulations are a slight improvement: they allow the employer to require that the certification address the employee's ability to perform the essential functions of his or her job (as long as the essential functions were provided to the employee with the original FMLA notice), and the employer is permitted to communicate directly with the health care provider to "authenticate" or "clarify" the certification. In the case of an employee on intermittent or reduced-schedule leave, the employer may require fitness-for-duty certifications as frequently as every 30 days "if reasonable safety concerns exist regarding the employee's ability to perform his or her duties," based on the condition that created the need for leave. Like the current regulations, the proposed regulations would not allow second or third opinions with respect to fitness-for-duty certifications.
MISCELLANEOUS
Intermittent/reduced schedule leave - temporary reassignment - The proposed regulations clarify an ambiguity in the current regulations, clearly providing that the "temporary reassignment" option applies only to employees on intermittent or reduced schedule leave that is foreseeable due to planned medical treatment. In other words, employers may not use the "temporary reassignment" option with employees who have unscheduled, unforeseeable absences. This is a negative for employers, but the DOL has invited comment. Employers are encouraged to ask the DOL to allow the "temporary reassignment" option in cases of intermittent leave due to unscheduled, unforeseeable absences at least where regular, reliable attendance is critical to the employee's position.
USERRA - The proposed regulations have added provisions reflecting the existing law that employees who are away from work because of reservist or National Guard duty are entitled to be credited with time that they would have worked for the employer but for such duty, for purposes of meeting the 12-month, 1250-hour requirement for FMLA eligibility. (NOTE - this provision is not to be confused with the new "military" FMLA provisions enacted in the NDAA, which are discussed below.)
REQUEST FOR COMMENT ON "MILITARY FMLA" PROVISIONS
The DOL also requested comment on virtually every aspect of the new "military" FMLA
leave recently authorized under the National Defense Authorization Act. The DOL does not know what a "qualifying exigency" should be. That is understandable, because the NDAA provides that the DOL should define "qualifying exigency" and that those provisions will not take effect until it does. But the provisions relating to leave for a service member's "serious injury or illness" were effective immediately, and the DOL admits that it does not know whether this 26 weeks is a one-time entitlement, or a once every- 12-months' entitlement. Therefore, the potential confusion that may exist under the "Military FMLA" provisions will require careful attention to detail to ensure that employers are complying with its provisions.
While the "military" FMLA leave issue is unresolved, employers should try in good faith
to address such requests as they arise, but make sure that their communications are carefully crated to ensure compliance with the ambiguities with military leave. In fact, employers may want to consider drafting a "model memorandum" that can be provided to employees. (Should you be interested in a model policy, please give me a call and I willb e glad to work with you on putting one together.) This memo should briefly explain "serious injury or illness" and "qualifying exigency" leave and says that the employer is awaiting more guidance from the government, but the company will address requests for such leave on a case-by-case basis.
While the proposed regulations are just that, the potential changes could be significant.
Therefore, if you would like to submit a comment on the regulations I encourage you to do so. As always, if you have a question about this article or anything I have written in the past, please feel free to ask me at the next chapter meeting.
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