A roadmap for taking some of the mystery out of FMLA

FMLA leave
Tim Gould
by Tim Gould
4 minute read

As new Family and Medical Leave Act rules kick in, a prominent employment law attorney offers some suggestions about how the feds should fix the law that’s driven HR pros crazy since 1993.

Jeff Nowak, writing on the FMLA Insights blog, suggests that before Congress wrestles with the issue of requiring employers to provide paid sick leave, it should address some of the thornier issues of the current leave law.
The first step: Clearly defining a “serious health condition.” Back in 1995, Nowak recalls, a DOL opinion letter stated that a common case of the flu or a cold wouldn’t count as a serious health condition — but a year later, the DOL reversed course, saying a cold or flu could qualify.
“In doing so, the DOL arguably rendered meaningless the regulation relating to the common cold and flu,” writes Nowak. “Put another way, minor illnesses that should have never been covered by FMLA are now covered.”
What should be done? Excerpts from Nowak’s proposals:

  • Give meaning to the FMLA regulation regarding common colds and the flu.The DOL should take a hard look at what’s “minor” and make sure those conditions stay in that category. This is what ordinary sick leave or PTO policies are good for.
  • Continuing treatment should be defined as two visits to a health care provider within 30 days of the onset of incapacity. We require two visits in one year for a chronic condition, so why not two visits in 30 days for a condition that renders the employee incapacitated for several days? That would alleviate the need to determine whether the employee is under a “regimen of continuing treatment.”
  • Increase the number of days of incapacity. Common colds and flu can last several days, thereby potentially triggering the FMLA. The period of incapacity should be a full calendar week.

Intermittent leave

No question, this is a huge headache for HR. Highlights of Nowak’s ideas to ease the pain:
Allow more flexibility in seeking recertification. Too many certifications supporting intermittent leave list the duration of the condition as “indefinite” or “lifetime.” In these situations, an employer can recertify only every six months. Medical certification should be valid for a much shorter period to time — perhaps 60 or 90 days.
Require the use of FMLA leave in half-day or full-day increments. The DOL has confirmed that unforeseeable FMLA leave can be taken in very small increments — which basically nickel and dime employers to death. Requiring longer increments will greatly help employers track and manage leave.
Employers need a better solution for employees who are on indefinite, unpredictable absences from work. An employee who has rhinitis 10 times per month for one-half day each? One who has a chronic bad back 15 times per month for 1-2 days per flareup?
These present a most difficult conundrum, as the need for leave may or may not be legitimate. At a minimum, employers must be given the option to deal with these situations to better accommodate their operations, such as temporarily reassigning the employee or placing them on a block leave of absence.

Medical certification

Another labyrinth for HR. More suggestions from Nowak:

  • Require more specific information in the “medical facts” section of the certification form, including the requirement that the health care provider report a specific diagnosis.
  • Allow employers to obtain more information supporting the notion that a medical condition actually incapacitated an employee. Again, employers often are stuck with whatever the certification on file indicates — but they have no real evidence that, say, a person had a migraine that prevented him or her from coming to work.
  • The second and third opinion process should carry more weight, and employers should be able to rely on them for absences in the past and the future. As employers increasingly use this costly second and third opinion process, these processes should be given greater weight as to absences that occur in the future.
    A handful of court cases say that employers should be able to rely on them. DOL should endorse the same approach.

Changes effective March 8

As you know, the DOL tweaks to the FMLA regs became effective March 8. Here’s a quick refresher course in the changes:

Expanding military caregiver leave

  • Veterans can now take leave if they’re undergoing medical treatment, recuperation, or therapy due to a “serious injury or illness.”
  • A “covered veteran” is a person who was discharged or released for reasons that weren’t “dishonorable” at any time during the five-year period prior to when the request for leave was taken.
  • The definition of “serious injury or illness” has been expanded to include an injury or illness that existed before the beginning of a service member or veteran’s active duty and was aggravated by service in the line of active duty.

Expanding qualifying exigency leave

  • The new regulations expand eligibility for qualifying exigency leave to family members of regular Armed Services members. Previously, only family members of those in the National Guard and Reserves could quality.
  • Eligible employees will now be able to take leave to care for a military member’s parent who is incapable of self-care, as long as the care is necessitated by the service member’s call to active duty. The amount of time an employee can take exigency leave during a military family member’s “rest and recuperation” period has also been expanded from 5 to 15 days.