The U.S Dept. of Labor has closed the books on comments on the new proposed FMLA regs and is on target to release the updated version in January. Here’s look at the seven likely revisions.

Kelli Thompson, an employment-law attorney with the firm of Baker Donelson Bearman Caldwell & Berkowitz, sees them shaking out this way:

1. Employee Eligibility Standards
Current: In order to be eligible for FMLA leave, an employee must have 12 months of service with his or her employer and have worked at least 1,250 hours during that 12-month period. What was murky in the regulations: The months of service didn’t have to be consecutive, but no one was quite sure how far to go back and how long a break in service had to be before an employer could refuse to include the time in the total 12-month period.
Proposed revision: The proposed regulations clarify that employers are not required to count prior periods of employment which occurred before a break in service of more than five years. There are a few exceptions, such as breaks for military service or if the employer has approved a period of unpaid leave and agreed in writing to reinstate the employee. Similar exceptions are made to the requirement that employees must have worked 1,250 hours in order to be eligible.

2. Serious Health Condition
Current: The regulations provide for leave in connection with a period of incapacity of more than three consecutive calendar days so long as the employee or family member has either (a) one visit to a health care provider plus continuing treatment, or (b) two visits to a health care provider.
Proposed revision: The proposed regulations clarify that the two visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity unless extenuating circumstances exist.

Current: The regs now allow for leave in the event of a “chronic” serious health condition.
Proposed revision: The proposed regulations specify that in order for a condition to qualify under this definition, it must have resulted in at least two visits to a healthcare provider annually.

3. Waiver of Rights
Current: The reg specifically prevents employees from waiving their FMLA rights. That lead to confusion over whether this prohibition only covered prospective waivers or also included retroactive waivers, such as those in settlement and severance agreements.
Proposed revision: The proposed regulations clarify that while employees may not prospectively waive their rights under the FMLA, they are permitted to waive the FMLA rights retroactively with or without the approval of the courts or the DOL.

4. Employer Notice to Employees
Current: Employers are required to designate leave as FMLA-qualifying within two business days unless there are extenuating circumstances.
Proposed revision: The proposed regulations extend the two-day requirement; employers will have five days to notify employees whether a planned leave will be FMLA-qualified. The countdown on the five days begins when the employer learns of the employee’s potential FMLA- qualifying condition.

Note: The DOL revision proposes that this notice to employees include eligibility information, employee responsibilities and the consequences to an employee in the event of noncompliance. Additionally, if a planned leave is found to be nonqualifying, the employer must explain why in the five-day notice. To assist in implementing these changes, the DOL has further proposed a new prototype notice form.

And in accordance with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine Worldwide, Inc., the proposed regulations clarify that employers may retroactively designate leave as FMLA-qualifying provided doing so does not cause harm or injury to the employee.

5. Employee Notice to Employers
Current: An employee does not need to mention the FMLA specifically in to invoke its protection.
Proposed revision: The proposal requires employees to provide specific information to employers before the employer’s FMLA responsibilities kick in. Specifically, an employee’s notice of leave should include:

• some indication that a condition renders the employee or family member unable to work
• an estimated duration of the absence, and
• whether the employee or family member plans to visit a health care provider. And an employee cannot trigger the employer’s obligations to further investigate whether an absence is FMLA-qualifying simply by calling in sick.

The proposal further provides that employees must respond to inquiries by their employers for the purpose of determining whether an absence is the FMLA-qualifying. If they do not, denial of the FMLA leave is legal.

6. Contact with Healthcare Providers
Current: Employers access to FMLA-related medical information is restricted. Employers cannot request specific details regarding symptoms, prescriptions, etc.
Proposed revision: The proposed regulations clarify that “sufficient medical facts” to support the existence of a serious health condition may include information about symptoms, hospitalization, doctors’ visits, prescription medication, referrals for evaluation or treatment or any other regimen of continuing treatment. Additionally, the proposed regulations clarify that healthcare providers may provide information on the diagnosis of the patient’s health condition but are not required to do so in order to complete the certification form.

Current: The regulations generally prohibit contact between employers and healthcare providers.
Proposed revision: There’s an exception that permits employers to contact physicians directly if “an employee’s serious health condition may also be a disability within the meaning of the Americans with Disabilities Act (ADA).” Employers who use exception, however, must be mindful to follow the additional restrictions imposed by the ADA. An employer may also contact an employee’s healthcare provider to seek “clarification and authentication” of medical certifications.

7. Fitness for Duty Certifications
Current: The law requires that a fitness-for-duty certification must only be a “simple statement.”
Proposed revision: The DOL proposes requiring the employees to submit a certification from their healthcare providers stating that the employees are able to resume work. As a safety measure, employers are permitted to provide employees with a list of their essential job duties. This list must be provided along with the eligibility notice and must be accompanied by notification to employees that a fitness-for-duty certification is required. If such a list of essential functions is provided, the employer is permitted to require the employee’s healthcare provider to certify that the employee can perform each individual duty on the list before allowing the employee to return to work.

Tags: dol, FMLA, healthcare, Serious Health Condition