On February 11, 2008, the U.S. Department of Labor (“DOL”) published proposed revisions to its regulations interpreting the Family and Medical Leave Act (“FMLA”), the federal law that grants eligible employees the right to take up to twelve weeks of job-protected leave for certain family- and health-related reasons. The proposed changes to the FMLA regulations are a reaction both to judicial interpretations of the FMLA in the thirteen years since the regulations were first issued and to comments from employers and employee-interest organizations regarding the difficulty in applying some provisions of the regulations. Some of the changes proposed by DOL would be highly beneficial to employers in their efforts to comply with the FMLA and manage employee absences, but the proposals do not make significant changes in certain areas that pose substantial challenges for employers, such as intermittent leave and the definition of “serious health condition.” Major aspects of the proposed revisions to the FMLA regulations are discussed below.

Proposed Revisions to the FMLA Regulations

Eligible Employee Status. To be eligible for FMLA leave, an employee must, among other things, have been employed by the employer for a total of at least twelve months. The twelve months of employment need not be consecutive, but the proposed regulations would provide that a period of employment preceding a break in service of five years or more need not be counted unless the break in service was due to military service or unless the employee had a written agreement with the employer calling for rehire after an approved absence or leave of more than five years.

Definition of “Serious Health Condition.” DOL’s proposed regulatory changes include several modifications to the definition of a “serious health condition” that would justify a health-related leave under the FMLA. Under one prong of the definition, a physical or mental condition constitutes a serious health condition if it results in a period of incapacity for more than three days and two or more visits to a health care provider. The proposed changes would require the two visits to a health care provider to occur within a thirty-day period. The proposed revisions would also include physician assistants within the definition of “health care provider.” Furthermore, DOL’s proposals would classify a chronic condition as a serious health condition only if, among other things, it requires visits to a health care provider for treatment at least twice a year.

Holidays Occurring During FMLA Leaves. DOL has proposed a clarification to the regulations relating to holidays occurring during an FMLA leave. The proposed change states that when an employee needs less than a full week of FMLA leave, a holiday occurring during that partial-week leave does not count against the employee’s entitlement to twelve weeks of FMLA leave. For example, if an employee who normally works Monday through Friday takes a leave from Wednesday through Friday and Thursday is a holiday, the employee would have used only two-fifths of a week of FMLA leave. However, if an employee uses a full workweek of FMLA leave and a holiday occurs during that workweek, the employee would be deemed to have used a full week of FMLA leave.

Application of Employer’s Policies and Practices. The current FMLA regulations contain a number of provisions indicating that FMLA rights trump employer policies regarding absences and the use of paid vacation and sick leave. The proposed revisions adopt a much more reasonable approach to blending FMLA leave rights with reasonable absence-control policies and practices. For example, DOL proposes that employees seeking to substitute paid vacation, sick leave, or personal days for unpaid FMLA leave would have to comply with the employer’s restrictions on the use of paid leave in doing so. Thus, if a vacation policy prohibits the use of vacation in less than full-day increments, an employee seeking to use paid vacation during an unpaid FMLA leave would have no right under the FMLA to use less than a full vacation day. Similarly, if an employer’s policy requires at least two days’ notice before the use of a paid personal day, an employee seeking to substitute a personal day for an unpaid FMLA leave day would have to give at least two days’ notice before that substitution may be made.

Another proposed revision would require employees to follow an employer’s established call-in procedures in connection with an FMLA-related absence. Unless unusual circumstances are present that would prevent an employee from calling in to report an absence, the failure to comply with the employer’s established procedures would allow the employer to delay or deny FMLA protections for the absence. This change would be particularly helpful to employers in managing unscheduled intermittent leave under the FMLA. For example, if an employer requires employees to call in before the start of a shift to report an absence and an employee who has been approved for intermittent FMLA leave fails to do so and calls in late in the day to report that his absence is FMLA-related, the employer could treat the absence as unprotected by the FMLA and could count the absence against the employee for disciplinary purposes, unless unusual circumstances are present that would excuse the failure to call in before the start of the shift.

Bonuses. DOL has proposed changes to the FMLA regulations that would allow employers that award bonuses based on the achievement of a goal to deny bonuses to employees who fail to achieve the goal because of an FMLA leave. The proposed change was made in part because of widespread criticism of the agency’s position that an FMLA leave does not disqualify an employee from receiving a perfect-attendance bonus. Under the proposed change, employees taking FMLA leave could not be treated less favorably for purposes of a bonus than employees on other equivalent types of leave. For example, if an ordinary vacation leave would not affect an employee’s entitlement to a bonus, an employee who substitutes accrued vacation for the full period of an FMLA leave could not be disqualified from receiving the bonus based on the FMLA status of the absence.

Release of FMLA Claims. Because of differing interpretations given to language in the current FMLA regulations, courts have reached differing conclusions on the question of whether employees may waive or release existing claims under the FMLA in a severance or settlement agreement. The proposed changes to the regulations would add a provision clarifying that employees may waive past claims under the FMLA and may do so without first obtaining the approval of DOL or a court.

Employer Notices. The proposed regulations contain a number of revisions relating to the notices an employer must provide to employees with respect to FMLA rights. The proposals would allow employers to post the required FMLA poster electronically on their internet and intranet sites instead of physically in their workplaces. The proposals would also revise the poster itself. In addition, the proposals would give employers five days (instead of the current two) after learning of an employee’s need for FMLA leave to furnish the employee with a notice of the employee’s FMLA eligibility status and would require certain new information in this notice. The proposals would also change from two days to five days the time frame for notifying an employee of the designation of leave as FMLA leave once the employer has sufficient information to make that designation decision. If leave is not designated as FMLA leave because of insufficient information or a nonqualifying reason, the employer would have to notify the employee of that fact. If an employee qualifies for intermittent leave on an unpredictable basis, the employer would have to notify the employee every thirty days of the amount of leave time designated as FMLA leave during the preceding thirty days. The proposed regulations would not impose any penalty on employers that retroactively designate absences as FMLA leave more than five days after they learn that a leave is for an FMLA-qualifying reason, but the failure to provide the FMLA designation notice in a timely fashion could result in liability to the employer if the employee can show harm stemming from the delay in designation.

Employee Notice Requirements. When the need for FMLA leave is foreseeable, employees ordinarily are required to request leave at least thirty days in advance. If an employee gives less than thirty days’ notice, the proposed regulations would require the employee to explain to the employer, upon request, why it was not practicable to give thirty days’ notice. DOL’s proposals also make it clear that an employee’s explaining an unforeseen absence simply by saying that the employee or a family member was “sick” would not be sufficient to put the employer on notice that the absence might be covered by the FMLA.

Medical Certification. Problems encountered by employers in complying with the extremely restrictive current regulations relating to medical certifications obtained in connection with health-related FMLA leaves have prompted DOL to propose numerous changes to those regulations. Among other things, the proposals would allow an employer that receives an incomplete or insufficient medical certification to notify the employee in writing of the additional information needed and give the employee seven calendar days to provide it. If the employee fails to provide the requested information in a timely fashion, the employer ordinarily would be permitted to deny the taking of the FMLA leave. The proposed regulations would also allow employers to contact a physician without the employee’s permission to authenticate a suspect medical certification, but an employer would need an authorization from the employee (or the employee’s family member with a serious health condition) to obtain medical information from a physician. Unlike the current regulations, which require an employer to contact an employee’s physician only through a physician engaged by the employer, the proposed regulations would allow employers to contact an employee’s physician directly for authentication or clarification purposes.

The proposed regulations also address fitness-for-duty certifications in connection with employees returning from FMLA leaves taken because of their own serious health conditions. The proposals would allow an employer to provide an employee on FMLA leave with a list of essential job functions and require that the employee’s health care provider certify that the employee can perform those functions. The list of job functions must, however, be provided to the employee at the time the employee is notified of his or her eligibility for FMLA leave. In the case of intermittent leaves, an employer could require the employee to furnish a fitness-for-duty certification every thirty days if leave has been taken during that thirty-day period and reasonable safety concerns exist.

Proposed changes to the FMLA regulations relating to employee benefits are discussed in a separate Kilpatrick Stockton Employee Benefits Legal Alert.

Request for Comments Regarding New FMLA Provisions

On January 28, 2008, President Bush signed into law amendments to the FMLA that grant eligible employees the right to take up to twelve weeks of leave during a twelve-month period because of any “qualifying exigency” (as defined by DOL) arising from an employee’s spouse, child, or parent being on active duty or ordered to active duty in the armed forces and to take up to twenty-six weeks of leave to care for a wounded service member when the service member is the employee’s spouse, child, or parent or when the employee is the service member’s next of kin. These amendments were discussed in Kilpatrick Stockton’s Labor & Employment Legal Alert issued on December 19, 2007. In connection with the publication of its proposed revisions to the FMLA regulations, DOL invited the public to submit comments to aid the agency in drafting regulations interpreting these new provisions of the FMLA. Because of the urgent need for these regulations, DOL plans to skip the traditional step of issuing proposed regulations interpreting the new FMLA provisions and will instead issue final regulations on those provisions following the close of the public comment period.

Practical Implications

The foregoing summary of proposed revisions to the FMLA regulations discusses only some of the many changes being considered by DOL and focuses on those changes likely to have the greatest impact on covered employers. The full text of the proposed regulations can be found on DOL’s web site at  http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. Employers interested in submitting comments regarding the proposed regulations or regarding the new FMLA provisions relating to leaves for employees with family members in the armed forces must submit their comments to DOL no later than April 11, 2008.

Employers should bear in mind that the revisions to the FMLA regulations discussed in this Legal Alert are not final and are not currently in effect. In dealing with FMLA-related issues, employers should continue to refer to the existing FMLA regulations that have been in effect since 1995 until such time as DOL takes final action to revise those regulations.