On Monday, February 11, 2008, the U.S. Department of Labor (DOL) is expected to publish in the Federal Register a dual-purpose proposal on the Family and Medical Leave Act (FMLA). The DOL's first purpose is to propose revisions to certain existing FMLA regulations. These are the first proposed changes to the existing regulations since the FMLA was passed in 1993. The other reason for the proposal is to request public comments on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act. The DOL will use these comments to issue final regulations for these new military family leave entitlements.

Proposed Changes to Existing Regulations

The DOL's proposal contains an extensive discussion of the existing regulations, offers a number of substantive changes and invites comments on many other provisions. The three areas of greatest concern to employers in the existing regulations are: the definition of a serious health condition; the use of unscheduled, intermittent leave; and the medical certification process.

Serious Health Condition

Under the proposal, the DOL would modify the definition for "continuing treatment" of a serious health condition that includes a period of incapacity of more than three consecutive days and two or more treatments. The DOL proposes that the two treatment visits must occur within a 30 calendar day period. Currently, the time period is undefined. Similarly, where the serious health condition involves a period of incapacity due to a chronic condition, the DOL would clarify that the employee must see a physician at least two times per year for that chronic condition. The existing regulations are vague and undefined, calling simply for "periodic visits."

Intermittent Leave

The proposal makes no change in the minimum size of an increment of intermittent leave that can be taken. The existing regulations allow an employer to limit intermittent leave increments to the smallest increment of time permitted under an employer's payroll timekeeping system, as long as it is one hour or less.

The proposal does include a helpful change requiring employees to comply with the employer's call-in procedures before taking unscheduled, intermittent leave. It contains a new provision that will require employees to follow the workplace call-in procedures if they want to take unscheduled, intermittent leave, except in defined "emergency" cases. Currently, employees can take the leave and then designate it as FMLA-qualifying leave within two days of the absence. The proposal only allows such an approach in the case of an emergency.

Medical Certification

The proposal makes a major change in the "medical certification" provisions so that employers will be able to contact medical providers directly to obtain clarification or authentication of documentation. Under the existing regulations, that communication must be between a health care provider representing the employer and the employee's health care provider. The DOL would clarify this process to eliminate the requirement for an employee's consent and would permit an employer to contact an employee's health care provider directly provided there is compliance with the federal Health Insurance Portability and Accountability Act (HIPAA).

The DOL is also proposing revisions to the medical certification process as well as to its optional forms. One such revision is that a healthcare provider may disclose diagnosis information on a medical certification. Another is that an employer must inform an employee why a medical certification is incomplete or insufficient and afford the employee seven days to cure it. The DOL also proposes to strengthen the recertification and fitness-for-duty certification processes. Recertifications could be requested at least every six months and the fitness for duty certification would be more rigorous.

Other Changes

The DOL offers cosmetic changes to the existing regulations by proposing a new format. Instead of the question format for each section of the current FMLA regulations, the DOL is proposing a descriptive title format for each section. Organizational changes are reflected in the various sections of the proposed regulations. For example, the current definition of a "serious health condition" is contained in a single section, 29 CFR §825.114. In its proposal, the DOL breaks up this definition into three separate sections entitled "[s]erious health condition," "[i]npatient care," and "[c]ontinuing treatments" that are redesignated as 29 CFR §825.113 - §825.115.

Among the substantive changes, the DOL proposes to clarify that a Professional Employer Organization (PEO) would not be a joint employer with its client in situations where the PEO does not control or supervise the client's employees and does not benefit from the work performed by the client's employees.

Other proposed changes would impact employer policies in the workplace. These include a proposal to require employees to comply with the terms and conditions of an employer's paid leave policy when substituting a paid accrued leave, such as paid vacation or paid time-off, for unpaid FMLA leave. Similarly, under the DOL's proposal, an employer could disqualify an employee from a bonus or award based upon achieving a goal if the employee fails to meet that goal due to a FMLA absence as long as other employees on non-FMLA were treated the same.

Probably one of the more significant revisions deals with employer and employee notification requirements. For example, the DOL would require employers to provide notice of FMLA rights and responsibilities to all its employees at least annually. It would afford employers five days instead of the current two days to provide an employee notice of eligibility for FMLA leave as well as FMLA leave designation notice. Likewise, an employee would be required to comply with the employer's usual procedures for calling-in and requesting leave when the employee's need for leave is unforeseeable.

Military Family Leave

The other purpose of this regulatory notice is to solicit public comments on the new "caregiver" and "active duty" leaves. While the DOL solicits comments on numerous, varied questions about these new leave entitlements, first and foremost in its requests for comments is the definition of the term "qualifying exigency" and determining whether it means an urgent or one-time situation or a routine, daily occurrence. The legislative history suggests that arranging for childcare, handling financial or legal matters, or participating in official ceremonies would be "qualifying" reasons.

Also, the DOL has raised numerous questions about the 26-week entitlement of caregiver leave. The 60-day public comment period will help the DOL define certain aspects of this entitlement such as: when the 12-month period commences (date of servicemember's injury or point in which the employee is needed to care for the servicemember); the basis on which the 12-month period runs (calendar year or when leave first taken); and whether "single" means it is a one-time entitlement or whether there is another entitlement in a subsequent 12-month period. These are just a few of the areas for which the DOL seeks comments.

What's Next?

The DOL expects to issue the final regulations before the end of the Bush administration. The rules will be open for public comment for 60 days from the date of publication, which is expected to be on February 11. The final rule on the new military family leave law will contain regulatory language based on comments received during the review process.