Significant changes to the regulations governing the Family and Medical Leave Act (FMLA) continue to work their way through the regulatory approval process. On October 20, 2008, the Department of Labor (DOL) submitted a "final" version of new FMLA regulations to the Office of Management and Budget (OMB) for approval. The "final" regulations are based on changes the DOL proposed in February 2008, the key components of which included:

  • Clarification that a "serious health condition" means a condition that entails three consecutive days of incapacity and two visits to a health care provider within 30 days of the start of the incapacity, or a "chronic" condition that requires at least two visits to a health care provider per year.
  • A requirement for employees to provide employers with more detailed information about the condition that leaves them unable to work, as well as an estimate of how long they will be away from work. Except in unusual circumstances, employers would also be allowed to require employees to comply with established call-in procedures if they cannot come to work.
  • Greater authority for employers to contact an employee's health care provider directly, such as to seek clarification of information listed in an employee's medical certification.
  • A provision that enables employers to deny a bonus or reward based on hours worked or "perfect attendance" to employees who do not achieve those goals because of FMLA leave, provided the employer does the same for employees who are on non-FMLA leave.
  • Increased obligations on employers to provide employees with information on FMLA eligibility requirements. Employers must also notify employees of their eligibility for FMLA leave within five days of learning of the employee's FMLA-qualifying condition.

Notably, the "final" regulations are not yet publicly available, and it is possible that the DOL modified the regulations it proposed in February in response to public comments. Two possible modifications include further guidance on the rules regarding intermittent leave and on leave provisions for military service members and their families, neither of which was addressed in the DOL's February proposal.

If the "final" regulations are not significantly different from what the DOL proposed in February, then the OMB has 45 days to approve them. If there are significant changes, however, then the OMB has 90 days to make a final decision.