Jottings By An Employer's Lawyer

Friday, February 08, 2008

Waiting with Bated Breath - the Proposed New FMLA Regulations Coming Monday

It probably won't quite stack up with the drama of the Patriots v. Giants classic of a week ago, but the suspense this week end waiting for the release of the proposed FMLA regulations may be intense. U.S. Department of Labor proposal will clarify FMLA rules for workers, employers and military families. Or maybe not.

Just in case you wondered how much anticipation you should have, the typed version apparently comes in just under 500 pages.

Update Saturday morning: For those who just can't wait until Monday morning, here's the link to the new regulations. Happy reading.

Some brief highlights:

  • The definition of "serious health condition" would be modified to require that the 2 or more treatments must occur within a 30 day calendar period and for chronic conditions the employee would have to see a physician for the condition at least twice a year;

  • There is no change in the time increments in which intermittent leave can be taken, which is something the employer community really would have liked. The proposed regulations would require that an employee using intermittent leave utilize the employer's regular call in procedure except under "emergency" situations, which is a plus.

  • There are numerous changes to medical certification provisions which would allow an employer to obtain more information from health care providers;

  • One of the best examples that has been used to bash the FMLA would be changed, the employee on FMLA leave would no longer be entitled to receive a "perfect attendance" or similar bonus as long as all types of leave are treated the same;

  • Employer and employee notification requirements are also changed. Employers would be required to provide annual notice of FMLA rights and responsibilities to employees but would get five days rather than the current two to provide an employee notice of eligibility for FMLA leave and designate a leave as FMLA; and

  • there's a change in the 12 month service rule for eligibility to exclude a break in service of more than 5 years, subject to exceptions for military, authorized educational or childrearing leaves, or where intent to rehire are covered by a collective bargaining agreement.

There is also a request for input on how the DOL should handle the recent expansion of the FMLA related to military leaves.

These proposed rules are not nearly as dramatic as the ones that were originally proposed to the white collar regulations which set off a legislative and political uproar. It will be interesting to see what happens to these. Although there will no doubt be comments from both sides, my initial thoughts are that if anyone should be howling for more, it should be employers.

A good example is intermittent leave. If you have any doubts that it is a real problem in need of a solution, consider what is happening to the Hillsborough Transit Authority in the Tampa area. It is currently faced with a $2.1 million cost because 42% of HART's 364 bus drivers have filed for intermittent medical leave. See, Family medical leave usage bloats HART's overtime.

According to the article,

HART executives are being forced to budget 18 percent more drivers to cover the daily workload. Those extra drivers report to work and wait for assignments to cover workers who call in sick.

Unscheduled absenteeism is on the rise among the drivers, up 34 percent since 2005. Nearly 40 percent of the HART bus driver absenteeism is a result of workers claiming intermittent time off under the Family Medical Leave Act.

It seems unlikely that the proposed changes in the regulations will help address these types of problems.

The new regulations have a 60 day comment period. Although it is not uncommon for those periods to be extended, I wouldn't count on it in this case as no doubt the folks at the DOL are well aware that the sand in the hourglass on the Bush administration is rapidly running out.


"There are numerous changes to medical certification provisions which would allow an employer to obtain more information from health care providers."

So much for HIPAA's privacy laws.
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