What changes have been proposed to the FMLA regulations?

On February 11, 2008, the U.S. Department of Labor's Wage and Hour Division published proposed revisions to the regulations under the Family and Medical Leave Act (FMLA). The proposal addresses numerous issues, including coverage, leave entitlement, notices and medical certifications. The full text of the proposed regulations can be viewed at http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf .

Among the proposed changes:

• Employment prior to a break in service of five years or more wouldn't need to be counted toward FMLA eligibility;

• For continuing treatment, the two visits to a health care provider would need to occur within 30 days of the beginning of the period of incapacity and, for chronic conditions, periodic visits must occur at least twice per year;

• Substitution of paid leave would mean that unpaid FMLA leave and paid leave run concurrently;

• If an employee calls in sick without providing more information, it would not be considered sufficient notice to trigger an employer's FMLA obligations;

• Employers would be able to post the FMLA's general notice electronically, if certain requirements are met;

• The timeframes for conveying eligibility for and designation of FMLA leave would each increase from two to five business days;

• When FMLA leave is requested, an employer would need to notify the employee whether leave is still available-if it isn't, the notice would need to indicate the reasons why;

• If an employer fails to comply with the FMLA's notice of eligibility or designation requirements, it could be liable to the employee for harm suffered;

• Employers would be allowed to directly contact an employee's health care provider to authenticate or clarify a medical certification (the HIPAA privacy rule would need to be followed when clarifying medical information); and

• An employer would be able to disqualify an employee from receiving a bonus based on achievement of a goal (such as perfect attendance), where the employee fails to achieve that goal as a result of an FMLA absence.

The proposed rules also include a revised FMLA poster, revised eligibility notice, new designation notice and revised medical certification form. Increased civil penalties for posting violations are also proposed.

Note that the regulations are only proposed at this point. Changes will not become effective until after they are finalized.