Posted: 02.15.2008
ALCOS encourages clients to review the proposed changes and submit your comments to the DOL by 12:00 midnight, April 11, 2008.
The Department of Labor's Wage and Hour Division published on February 11th, 2008 a Notice of Proposed Rulemaking under the Family and Medical Leave Act. ALCOS encourages clients to review the proposed changes and submit your comments to the DOL by 12:00 midnight, April 11, 2008.
The Federal Register Notice, instructions for submitting comments and related documents are available at Wage and Hour's FMLA Notice of Proposed Rulemaking website. Rules for submitting electronically can be found at the Federal eRulemaking Portal at www.regulations.gov. Your comments will be posted without change, including any personal information provided, and will be viewable by the public.
The proposed rules are a result of both U.S. Supreme Court and lower court cases that invalidated portions of the current DOL regulations, and because of passage of the military leave provisions in the National Defense Authorization Act of 2008.
The proposed regulations address several key areas:
Serious Health Condition: The proposed rule retains the six individual definitions of serious health, but adds guidance on two regulatory terms. The definition that involves more than three consecutive calendar days of incapacity plus “two visits” (open-ended) to a health care provider has been clarified. The proposed regs require that the two visits must occur within 30 days of the period of incapacity. The second open-ended term is “periodic visits” for chronic serious health conditions. The proposed regs define these visits as at least twice a year to a health care provider.
Medical Certification Process (Content): proposal will allow direct contact between the employer and the healthcare provider to clarify medical certification, as long as they meet the requirements of the HIPAA medical privacy regulations. Employers can only ask healthcare providers for information required for the certification form, nothing additional. The proposal also improves the exchange of medical information by updating the DOL’s Form WH-380 and allowing (not requiring) healthcare providers to provide a diagnosis of the patient’s health condition as part of the certification.
Medical Certification (Timing): Employers may request a new medical certification each leave year for medical conditions that last more than a year. In all cases, the new proposal allows an employer to request recertification of an ongoing condition at least every six months in conjunction with an absence.
Fitness-For-Duty Certifications: The new regs propose two changes. First, the employer may require that the certification address the employee’s ability to perform the essential functions of the job. Second, when reasonable job safety concerns exist, the employer may require certification of fitness before an employee returns to work when the employee takes intermittent leave.
Employer Notice Obligations: The proposal increases employers’ notice requirements. It extends the time for employers to send out eligibility and designation notices from two business days to five business days. Also, it specifies that if an employer deems a medical certification to be incomplete or insufficient, the employer must return it to the employee and specify in writing the information that is lacking. The employer must give the employee seven calendar days to resolve the deficiency.
Employee Notice: The regs modify employee notice provisions so that in most cases an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence barring any unusual circumstances. Under the current regulation, employees have been allowed up to two full business days after an absence to provide notice, even if they could have provided it earlier.
Military Family Leave: Certain provisions of H.R. 4986 are effective immediately and others will depend on what is proposed in the regulations. The department is seeking public comment on these issues to implement them in a final rule. Employers also need to inform employees about the military leave regulation. DOL has released a poster that employers can use for this purpose.
Source: Sheila Mills – American Society of Employers Senior Affirmative Action Consultant and www.dol.gov/esa/whd
