The Department of Labor has issued proposed revisions to the federal Family and Medical Leave Act ("FMLA") regulations. If adopted, these new regulations will be the first significant update to FMLA since its enactment fifteen years ago. The proposed changes include:

  • Employers will be able to directly contact health care providers for authenticating and clarifying a medical certification.
  • Employers can require that health care providers certify that an employee is able to perform a list of essential job functions.
  • Employees can be required to follow their workplace call-in procedures when taking unscheduled, intermittent leave, unless extraordinary circumstances exist.
  • Employers will have up to 5 business days (rather than 2) in which to notify employees of their eligibility to take FMLA leave after either the employee requests leave or the employer acquires knowledge that the leave may be for an FMLA-qualifying reason.
  • Employees must make a "reasonable effort" to schedule intermittent leave so as to not unduly disrupt an employer's operation.
  • Employees must give notice within the same day (if knowledge obtained during work hours) or the following day (if knowledge obtained after hours) when they become aware of a need for leave less than 30 days in advance. Employees can be required to provide more detailed information about their need for leave.
  • Employers will have 5 business days (rather than 2) to request a medical certification. If the medical certification is incomplete or insufficient, employers must describe the deficiencies in writing and give employees 7 calendar days to cure the problems.
  • Employers may be liable for any individualized harm suffered by an employee due to a failure to comply with the notice obligations.
  • Employers and employees can voluntarily agree to settle past FMLA claims without DOL or court approval.

In light of these proposed changes and the enactment of the new military leave obligations, employers should review their leave of absence policies and forms to ensure compliance.