New FMLA Regulations Proposed

Legal Alert
New FMLA Regulations Proposed
Issued: February 12, 2008

Yesterday, the Department of Labor issued new proposed Family & Medical Leave Act (FMLA) regulations, which make sweeping and far reaching changes to the application of the FMLA. These proposed regulations affect several critical determinations which are made on a daily basis by human resource professionals. The following are examples of several areas which will be affected by these changes:

Intermittent Leave: The proposed regulations continue to allow employees to take intermittent leave in the smallest increment of time permitted under the employer’s timekeeping systems. However, the proposed regulations have been changed to allow the employer to require the employees to follow workplace call-in procedures for even the smallest of intermittent leaves.

Fitness For Duty Requirements: The proposed regulations allow employers to request that returning employees undergo a fitness-for-duty examination to determine whether the employee can safely perform the essential functions of his or her job.

Chronic Health Conditions: The proposed regulations provide that if the condition lasts more than one year, an employer may request an annual recertification. If the condition is described as “lifetime” or “unknown”, the employer may ask for recertification every six months for the duration of the absence.

Medical Certification Process: In a major change, the proposed regulations allow employers to contact medical providers directly to obtain clarification or authentication of documentation. However, the health care provider would need permission from the patient to provide this information.

Light Duty Assignments: The proposed regulations state that time spent on “light-duty” assignments will not be counted towards the total 12 weeks of available FMLA leave.

We are currently evaluating the almost 150 pages of proposed FMLA regulations issued by the Department of Labor. We will be issuing a more detailed analysis of the impact of the proposed regulations later this week. Please watch for an upcoming Client Alert, to be electronically distributed shortly by Davis & Kuelthau, s.c. For more information on the proposed regulations and other hot topics under the FMLA, please join us for one of our upcoming Breakfast Briefings entitled “Living with the FMLA: Realities and Strategies.” Please see below for seminar information.

Used with permission from Reinhart Law