LawyersUSA

After several years of anticipation, the Department of Labor has issued its final proposed changes to the Family and Medical Leave Act.

The wait won't end the controversy over the proposals, which include new notice requirements for employers and no changes to intermittent leave.

Plaintiffs' lawyers, on the other hand, are concerned about a change that would allow employers to have direct contact with employees' physicians as well as an overall sense of diminishing coverage.

Frank Alvarez, a partner at Jackson Lewis in White Plains, N.Y. and the firm's national coordinator of the Disability, Leave and Health Management Practice Group, said that on the whole, the proposed changes "are a step forward for employers."

But Kate Kahan, the director of work and family programs at the National Partnership for Women and Families in Washington, D.C., said the proposed changes would take the FMLA "in the wrong direction."

"Instead of expanding the Act, the general theme appears to be putting more of a burden on the employee and making it more difficult to access his or her rights, whether it's more red tape in getting medical certification for a serious health condition or having to provide certain kinds of notice to the employer," she told Lawyers USA.

Accompanied by a 127-page report explaining the DOL's intent, the regulations are now in a 60-day notice and comment period that ends on April 11. Interested parties are encouraged to submit comments either by mail or electronically. To read the proposed regulations or comment, go to: http://www.dol.gov/esa/whd/FMLANPRM.htm.

The Department will evaluate the comments after April 11 and then develop final regulations.

"It's realistic to think something will become final later this year," Alvarez predicted.

What they do

The DOL was required to issue some changes as a result of a 2002 U.S. Supreme Court decision striking down a FMLA regulation. (Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81. See "Firing of worker on sick leave ok though no notice, Lawyers USA, April 1, 2002. Search words for Lawyers USA website: Bowden and Ragsdale.)

The new regulations also re-order and re-number existing provisions, which could be confusing for practitioners. Here's a look at some of the biggest changes:

• Triggering protection under the Act.

One of the real improvements for employers is the clarification that calling in sick to work is not enough for an employee to get protection under the Act, Alvarez said.

"Employees have an affirmative duty to come forward and give additional information to their employers" in order to exercise their rights under the FMLA, he explained.

This change is very important because employees "often call in sick and the conversations can be vague or confusing and employers really don't know whether or not the worker has triggered FMLA protections," Alvarez said. "Now employers know that it is lawful and appropriate to hold employees accountable for that absence if the illness isn't sufficiently serious to get protection under the Act."

• Notice requirement changes.

Employers are currently required to post a notice with general FMLA information for their employees. One proposed change would allow the posting to be electronic if all employees have access to company computers.

Employers would also be required to distribute the same information to each employee on an annual basis in addition to the posted notice.

Kahan praised the new annual notice requirement.

"The Act can be so confusing for both employees and employers, and this is a really positive change that will help educate all parties," she said.

Another proposed change would separate employers' notice obligations into a two-step process.

First, employers would need to send an employee an "eligibility notice" after a request for leave or if the employer has knowledge the leave may qualify for FMLA. The notice would include information about whether the employee still has leave available under the Act and if not, must explain the reasons why (for example, if he or she had already used up the 12-week period).

Once an employer establishes a worker's leave is protected by the FMLA, the proposed changes would require a second "designation notice" informing the employee that the leave has been designated under the Act.

Samples of both notices are included in the proposed regulations.

The new two-step process would essentially eliminate the use of a preliminary notice from employers to employees, resulting in "more consistent and effective FMLA administration," Alvarez predicted.

Employers' time frame for sending the two notices would be increased from the current two business days to five.

"This is a much more realistic time frame for employers," Alvarez said, noting that it can take time for information to be passed from supervisors to upper level management.

• New forms.

New medical certification forms – expanded and revised from the old versions – will allow employers to make "more meaningful judgments about absences," Alvarez said.

Especially in cases of intermittent leave, "it's really important for employers to understand the scope of an employee's anticipated need for leave so they can evaluate later on if the circumstances have changed," he explained.

The new forms require employees to answer more questions, which should allow employers to better understand an employee's needs on the front end of a leave, giving the situation more clarity, he said.

• Employer-physician contact allowed.

In a controversial change, the proposed regulations would allow employers to have direct contact with an employee's health care provider under certain circumstances.

If a medical certification needs verification or authentication and the employer gives the employee the opportunity to cure the deficiency and he or she fails to do so, the employer may then get in touch with the provider without the employee's permission.

The employer is not authorized to request any medical information beyond what the certification form requires, however.

Kahan said the proposal creates "great concern" for workers.

"This is a huge privacy concern and creates a difficult dynamic for an employee," she said.

• Intermittent leave.

In its report, the DOL noted that the ability to take increments of intermittent leave received the most comments of any topic when the initial proposals were released several years ago and appeared to be the most contentious subject.

Employers were hoping that the Department would change the increments of intermittent leave to blocks of four hours, Alvarez said, so the lack of change to the regulations was a disappointment.

"It is exceedingly difficult to run a business when people are coming in late or departing early by a few minutes here and there," Alvarez said.

Especially in situations where employees have self-treatable chronic conditions such as depression, migraines or asthma, those workers can come in 30-60 minutes late any day and an employer "has virtually no recourse under the FMLA," he said.

The proposed regulations maintain the existing rule that employers must track leave in the shortest period of time that their payroll system uses to account for absences.

However, the new proposals do have one change that is positive for employers.

Currently, employees seeking intermittent leave must make an "attempt" to avoid disrupting an employer's operations; the proposal would require employees to "make a reasonable effort."

• 'Serious medical condition.'

Under the current FMLA regulations, a "serious health condition" that warrants covered leave is an illness requiring leave of three days or more.

A "serious health condition" is further defined as an injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice or residential care facility or continuing treatment by a health care provider.

Employers had sought clarification regarding whether common ailments, such as the flu or a cold, might qualify for FMLA protection, arguing that the existing definition doesn't cover such ailments.

But the new proposals state that common ailments that otherwise meet the definition of "serious medical condition" can trigger FMLA leave for employees.

• Bonus/incentive compensation.

The proposed changes would allow employers to consider attendance as part of a bonus or incentive compensation program and potentially disqualify an employee from receiving an award because of a FMLA absence.

Previously, "there was a great deal of confusion as to the circumstances under which an employer was permitted to consider attendance and/or absences when figuring out bonuses," Alvarez explained.

DOL opinion letters on the issue had been inconsistent, leaving employers uncertain about how to treat attendance.

Uncertainty remains for military leave

The regulations also address military family leave.

On Jan. 28, President George W. Bush signed the National Defense Authorization Act which contained amendments to the FMLA governing military family leave.

Under the new legislation, workers with family members serving in the military can take up to 26 weeks of FMLA leave to care for recovering military service personnel – spouses, parents, children or next of kin – during a 12-month period. This change took effect immediately.

In addition, a proposed change yet to take effect provides for leave if a "qualifying exigency" arises from a family member's active duty assignment or after a service member has been notified of an impending call to active duty.

However, "the meaning of 'qualifying exigency' as a new form of leave is unclear," Alvarez said, leaving lawyers uncertain about how to counsel their clients.

The regulations address some of the changes in the new legislation, but seek comment on other open issues, such as the meaning of "qualifying exigency."

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com