On Monday, February 11, 2008, the U.S. Department of Labor (“DOL”) published long-anticipated proposed revised rules governing the Family and Medical Leave Act (“FMLA”) of 1993.
The proposed regulations contain many improvements over the existing regulations. For example, the current regulations are organized in a question-and-answer format, and often, answers to a particular question or issue can only be determined by looking at more than one section. The proposed revisions have eliminated the question-and-answer format and deleted much of the repetitive material, keeping all of the information regarding a given topic (such as leave for the birth or adoption of a child) in one section, as opposed to spreading that information out over several different sections or questions. The result is that the regulations are organized more intuitively and are much more user-friendly.
The DOL failed to clarify the most troublesome aspects of the existing regulations (for example, “serious health condition” and “intermittent leave” remain nearly unchanged), but there are some improvements worth noting:
- The current regulations prohibit employers from talking directly with its employees’ health care providers, and require employers to hire their own health care practitioners to ask questions about medical certifications. The proposed revisions allow employers to directly contact employees’ health care providers for the purposes of authenticating and clarifying medical certifications.
- In response to and, in essence, overruling the Fourth Circuit’s decision in Taylor v. Progress Energy, 493 F.3d 454 (4th Cir. 2007), which invalidated the FMLA waiver in an employment severance agreement, the DOL’s proposed revisions clarify that employers and employees may voluntarily agree to the settlement of past FMLA claims without the permission or approval of the DOL or a court. The prohibition on waivers of prospective FMLA claims remains a part of the regulatory scheme.
- The proposed revisions improve the definition of what constitutes “sufficient information” for employers to be on notice that employees need FMLA leave. Specifically, the proposed revision clarifies that calling in with the simple statement that the employee or the employee’s family member is “sick” without providing more information will not be considered sufficient notice to trigger the FMLA.
The proposed revisions are open for public comment through April 11, 2008, and then the DOL will consider those comments before issuing the final rule, probably sometime late this year. In the meantime, be aware that your FMLA policies may need updating to reflect the changes and ensure that your human resources personnel and management employees are prepared to embrace the new requirements when the time comes.