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New Regulations on the Family and Medical Leave Act Aimed At Addressing Many Problematic Issues
The Family and Medical Leave Act (FMLA) applies to businesses that employ 50 or more employees. It guarantees 12 work weeks of unpaid leave for eligible employees who suffer from serious health conditions, whose immediate family members suffer from serious health conditions, or for pregnancy-related conditions or adoptions. Under the FMLA, employees are eligible for such leaves once they have been employed for at least 12 months and have worked at least 1,250 hours in the 12 months just prior to the leave.In our recent Client Alert, we notified you that the FMLA was amended on January 28 to provide for two new types of leave to address the needs of employees who have family members serving in the Armed Forces. A full account of this new law and the changes can be found on our website (www.rbslaw.com) under “Latest News” dated February 20, 2008.
As a result of the new military leave law, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking on February 11 concerning the new leave law, as well as many other issues that have arisen under the FMLA in the past. Comments must be submitted by April 11 and the new rules are expected some time thereafter.
The DOL has identified the following main regulatory changes:
- Penalties Removed For Employer’s Failure to Follow Notice Obligations. Under the current regulations, employers who did not comply with their notice obligations, such as informing an employee that she is eligible for FMLA within three business days, were unable to count the time the employee was on leave as FMLA leave, thereby resulting in an employee being given more leave than that permitted under the FMLA. Due to the number of courts that have invalidated these penalty provisions, the new regulations have eliminated them and clarified that when an employee suffers individualized harm due to the employer’s failure to adhere to the notice obligations, then and only then may an employer be liable.
- Light Duty. The current regulations and a number of courts have provided that if an employee chooses to return to work in a light duty capacity instead of remaining on FMLA, the time he works in that light duty capacity counts as FMLA leave, even though he is continuing to work. The proposed rule will actually clarify that time spent on light duty work does not count against FMLA leave entitlement.
- Perfect Attendance Rewards. Under the current regulations, employers who provide rewards for perfect attendance are not permitted to take FMLA leave absences into account in determining whether an employee is eligible for such a reward. Thus, many employers have eliminated these types of rewards because they were required to reward those who did not have perfect attendance. The new rules now allow an employer to disqualify an employee from a reward predicated on the achievement of a goal where the employee fails to achieve that goal as a result of an FMLA absence, so long as other non-FMLA absences are similarly treated.
- Employee Notice. The current regulations permit employees to provide notice of their absence up to two business days after their absence, even if they could have notified the employer in a more timely nature and even where the failure to notify violates their employer call-in procedures. The new rules now state that an employer may delay FMLA leave for up to the amount of time the employee unreasonably failed to provide timely notice and to take disciplinary action for the employee’s violation of internal call-in procedures so long as the discipline is the same for any other violation.
- Employer Notice. The proposed rules will increase the employer’s notification duty from three business days to five business days. In addition, employers are provided with an easier procedure to work with employees to cure incomplete or insufficient medical certifications. The new rules will permit an employer to return the incomplete or insufficient certification to the employee, specify in writing what exactly is insufficient or incomplete, and permit the employee seven days to return a completed certification.
- New Medical Certification Form and Process. The proposed rules will revise the WH-380 form, commonly known as the Medical Certification form. Also, for the first time, the proposed rules permit employers to directly contact the health care provider for purposes of clarification, so long as the HIPAA privacy laws are followed.
- Fitness-for-Duty Certifications. Two changes are proposed regarding fitness-for-duty certifications. First, an employer has been given authority to require that the certification address the employee’s ability to perform the essential functions of the job. Second, where reasonable job safety concerns exist, an employer can now require a fitness-for-duty certification from an employee returning from an intermittent leave.
At this point, employers need not make any changes based on these proposed rules, except for the new military leave provisions (see www.rbslaw.com, “Latest News,” 2/20/08). We will issue a Legal Alert at the time the new rules are finalized and conduct Breakfast Briefings at that time as well. In the meantime, please contact Lynn Schonberg with any and all questions or concerns regarding this matter.