Federal regulators last week closed off public comment on the proposed changes to the Family and Medical Leave Act. Here’s what’s coming, and what to watch for.
The proposals cover seven major parts of the FMLA:
Medical certifications. Under the proposals, employers would have five days to request medical certification of the need for leave. If you decide an employee’s certification is incomplete, you’ll have to describe in writing what’s missing and allow the employee seven days to submit the missing information. Under the current regulations, only a physician hired by the employer may directly contact an employee’s healthcare provider, but the proposed changes would permit employers to directly contact an employee’s healthcare provider to seek “clarification and authentication” of medical certifications. The DOL is also proposing changes to the WH-380 certification form to require more information from the healthcare provider.
Employee eligibility. Under the proposed regulations, the 12-month period in which the employee can use FMLA leave wouldn’t have to be consecutive. Employers would have to count employment prior to a break in service lasting less than five years. The proposed regulations also provide that military service can satisfy the 1,250-hour requirement for eligibility.
Light duty. Under the current regulations, light-duty time can be counted against an employee’s 12 weeks of FMLA leave. Under the proposed regulations, periods of light-duty work wouldn’t count against an employee’s 12 weeks of FMLA leave.
Fitness-for-duty certification. The proposals add a wrinkle or two to the certification process, but it may be to your advantage. Under the proposed regulations, an employer could require that an employee’s healthcare provider certify that the employee is able to perform the functions on a list of essential job functions provided by the employer. Also, the proposed regulations would permit employers to require employees to provide a fitness-for-duty certification every 30 days if the employee has used intermittent leave during that period and if reasonable safety concerns exist.
Employer notice. The proposals provide a “general notice” to be used by employers to inform employees generally of their FMLA rights. And employers would have to —
- notify employees of their eligibility for leave within five business days of receiving a request for leave, and
- notify employees that leave is being designated as FMLA leave within five days after receiving sufficient information to make such a determination.
Employee notice. The new rules would require that when an employee learns of the need for leave less than 30 days in advance, the employee must give notice the same or the following day, unless there are emergency circumstances that prevent notification. For unforeseeable leave requests, the employee must provide notice to the employer no later than the start of the employee’s shift. And the proposals would permit employers to require employees to follow established call-in procedures.
Waiver of FMLA claims. The proposed regulations would permit employers and employees to voluntarily agree to the settlement of past FMLA claims without court or U.S. Department of Labor approval.
For more detailed information, go to http://www.dol.gov/esa/whd/FMLANPRM.htm.