FEBRUARY 14, 2008
Summary of the FMLA Proposed Rule Issued by the DOL on February 11, 2008
On February 11, 2008 the U.S. Department of Labor (“DOL”) issued a Proposed Rule for implementing revisions to the current Family and Medical Leave Act (“FMLA”) regulations. The proposed changes are expressly based on the agency’s fifteen years of experience in administering the Act, prior DOL studies on the FMLA in 1996 and 2001, rulings by the U.S. Supreme Court and lower federal courts, as well as consideration of the 15,000 public comments received in response to a Request for Information published by the DOL in December 2006, which solicited comments on experiences with the FMLA and administration of its implementing regulations. As presented, the 127 page Proposed Rule reorganizes many of the existing regulations; adds, deletes or consolidates others; and substantially revises a number of provisions. In addition, through the Proposed Rule the DOL solicits public comment on issues arising under the military family leave provisions of the National Defense Authorization Act for FY 2008, which became effective on January 28, 2008. Some of the most notable proposed changes and issues identified in the Proposed Rule are summarized below.
Eligibility
In the Proposed Rule, the DOL takes up the issue of how breaks in service should be treated in determining whether an employee has been employed for the twelve months required to be eligible for FMLA leave. In its analysis, the agency essentially adopts the holding of the First Circuit Court of Appeals in Rucker v. Lee Holding, Co. 471 F.3d. 6 (1st Cir. 2006). In that case, the court held that the time an individual spent as an employee prior to a five-year break in service did not count towards the 12-months of employment eligibility requirement.
The current FMLA regulations state that the 12 months need not be consecutive. Some courts have interpreted this to mean that all prior employment counts towards the 12-month FMLA eligibility requirement, regardless of how long a break in service may have lasted. The DOL proposes adding a new provision to the regulation stating that employment prior to a continuous break in service of five years or more does not have to be counted.
The DOL also proposed two exceptions to the five-year break in service rule: (1) where the break in service results from an employee's fulfillment of military obligations; and (2) where a written agreement provides for the employee to be on an approved absence or unpaid leave and states the employer's intent to rehire the employee.
Serious Health Condition
While declining to specify illnesses that would never constitute an FMLA-covered serious health condition, the DOL has proposed reorganizing the structure and language of the current definition of a serious health condition in order to help employers and employees to better understand what constitutes a serious heath condition. Proposed changes include:
- Adding a paragraph addressing the types of treatments and conditions not ordinarily expected to be covered.
- Where leave involves incapacity of more than three consecutive days plus two health care provider visits, absent extenuating circumstances, the two visits must occur within 30 days of the beginning of the period of incapacity. This proposal eliminates the current open-ended period for an employee to receive medical treatment.
- To constitute a chronic condition, the DOL proposes to define "periodic treatment" as twice or more a year. Currently, "periodic" is not defined by the regulations.
- Leave related to pregnancy, adoption/foster care, and substance abuse are each addressed in their own separate sections.
Amount of Leave
The DOL proposes revised language to § 825.200 noting that whether a holiday occurring during an employee's FMLA leave counts against the employee's FMLA entitlement will depend on the duration of the employee's leave. If the employee needs leave for an entire week in which a holiday falls, the hours the employee does not work on the holiday count against the employee's FMLA leave entitlement. On the other hand, if the employee works part of a week that a holiday falls, the hours the employee did not work on the holiday do not count against the employee's FMLA leave entitlement if the employee would not otherwise have been required to work on that day.
Intermittent Leave
The DOL proposes to clarify that an employee who takes intermittent leave when medically necessary has a statutory obligation to make a "reasonable effort," as opposed to an "attempt," to schedule leave so as not to disrupt unduly the employer's schedule. The DOL declined to alter the requirement that employers provide intermittent leave in the smallest increment of time the employee uses to record time.
Paid Leave Substitution
The DOL proposes two substantive changes to the current regulations regarding paid leave:
- The DOL proposes adding language to clarify that "substitution of paid leave" means to run available paid leave concurrently with unpaid FMLA leave. Some courts have interpreted this provision to mean “in place of” so that the paid leave lost the protections of the FMLA.
- The DOL also proposes to eliminate the distinction between paid sick leave and vacation/personal leave in terms of an employer's ability to enforce their established policies regarding the use of that type of leave. As proposed, an employee must comply with an employer's paid leave policies in order to substitute accrued paid leave for unpaid FMLA leave.
Return to Work & Bonuses
The DOL proposes to eliminate the distinction in § 825.215 between bonuses for job performance and bonuses based on achievement of a goal (e.g., perfect attendance). Instead, the DOL proposes language providing that an employee who has not met a specified goal due to FMLA leave may be denied the bonus as long as similarly situated employees who took non-FMLA leave were also denied the bonus.
Notice Requirements
The DOL proposes consolidating all notice requirements into one section. In regards to employer obligations, the DOL proposes increasing the time an employer has to notify an employee that it has designated leave as FMLA-qualifying from two to five business days. In addition, the proposal allows employers to satisfy the FMLA poster requirement by electronic posting on the employer's site if certain conditions are met. The DOL proposes increasing the civil penalty for failure to post to $110 for willful violations. Also, the DOL presents a revised version of its prototype poster.
In addressing employee notice obligations, the DOL proposes a provision under which employees who fail to give at least 30 days advance notice of the need for foreseeable leave may be required to explain why it was not practicable to give 30 days' notice. Also, absent emergency situations, the DOL proposes modifying the existing regulations to provide that it will be deemed practicable for an employee to provide notice of the need for foreseeable leave either the same day or the next business day.
Where the need for leave is unforeseeable, the DOL proposes modifying the regulations to provide that in all but the most extraordinary circumstances employees will be expected to provide notice of the need for leave at least prior to the start of their shift. Absent unusual circumstances, the DOL proposes requiring employees to abide by established call-in procedures for leave, unless the employer's policies allow less time to request leave than the FMLA permits.
In addressing the requirements for providing sufficient notice that the leave may be FMLA qualifying, the DOL notes that the employee does not have to mention the FMLA by name, but the agency proposes a requirement that the employee provide more substantial information, including indicating that they are unable to perform the functions of their job, or that a covered family member is unable to participate in regular daily activities, as well as noting the anticipated duration of their absence, and whether the employee or family member intends to visit a health care provider or is receiving continuing treatment.
Medical Certification
The DOL proposes a number of changes to the Medical Certification requirement, most of which are aimed at curing incomplete or insufficient certifications and requiring the provision of more information by the health care provider. In addition, under the Proposed Rule, employers would no longer have to gain the employee's consent to contact the health care provider to authenticate the medical certification. But, the employer would still have to get the employee’s consent prior to contacting the employee's health care provider to clarify the content of the medical certification. The DOL proposes to add language specifying that an employee who refuses to give such consent may jeopardize his or her FMLA rights if the information provided is incomplete or insufficient.
Military Family Leave
The DOL has not issued proposed regulations to implement the new military family leave provisions, and the Proposed Rule gives little guidance as to how employers should approach implementation of the leave provisions that became effective on January 28, 2008. Instead, in the Proposed Rule the agency describes the new statutory provisions and raises a number of issues and questions that have been identified, including the following:
- How should new terms such as “next of kin” and “son or daughter” be reconciled with existing FMLA definitions?
- How should the 12-month period be calculated (e.g., from the date of the servicemember’s injury, the first date an eligible employee is needed to care for them, or some other basis)?
- Whether the 26 workweek leave provision is a one-time entitlement or may an employee have multiple such entitlements?
- How should leave that qualifies as either care of a servicemember or care of a spouse, parent or child be designated?
- Since the military leave amendments provide for a combined total of 26 workweeks of leave to care for a servicemember as well as leave for other FMLA-qualifying reasons during a 12-month period, how should the military leave provisions be implemented if different methods are used to calculate leave taken to care for a servicemember versus for other FMLA-qualifying reasons?
- Should the content of a medical certification be different when it is in support of a leave request to care for a servicemember, and what type of information should be included in a certification supporting leave for a “qualifying exigency” related to active duty?
In the interest of “expedient publication of regulations” so that employers and employees may be aware of their rights and responsibilities under the new military family leave provisions, the DOL states that it expects the next step in the rulemaking process will be the issuance of final regulations. This means that the public will not have the opportunity to comment on proposed regulations implementing these new statutory provisions, which makes the process of collecting public commentary in response to the Proposed Rule all the more important.
Request for Public Comment
In its submission the DOL repeatedly solicits public comment on the Proposed Rule and encourages the public to raise any further issues that may not have identified in the document. Members of the public have until April 11, 2008 to send comments to the DOL on the Proposed Rule. A complete copy of the Proposed Rule can be found on the DOL’s website at http://www.wagehour.dol.gov and comments may be posted at http://www.regulations.gov.
Although the DOL does not specify how long after April 11 it will take to issue final regulations, given that this is an election year, we expect that the proposed regulations, as well as the new military family leave provisions, will be the subject of considerable attention by Presidential candidates, which may delay the release date of any new regulations. In the meantime, employers are encouraged to maintain their best effort to comply with the existing regulations and the DOL recommends that employers apply existing FMLA-type procedures in providing military family leave to qualifying employees.
If you have any questions about this article or any other related matters, please contact: Chris Floyd at 757-446-8600 or Send Email.
These articles are meant to bring awareness to the topic and are not intended to be used as legal advice. If you have questions about any of the articles or any other related matters, please see the contact information located at the end of each individual article.
