On February 11, 2008, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking to update the Family and Medical Leave Act (FMLA). The stated goal of this update is to improve administration of FMLA for employers and to help workers better understand their rights and responsibilities. Additionally, the proposal includes language that allows for FMLA up to 26 weeks of leave for family members of wounded members of the military and up to 12 weeks of leave for family members of a person who is called to active duty in the military service.

In December 2006, DOL issued a request for information that asked the public to comment on their experiences with, and observations of, the Department’s administration of the law and the effectiveness of the regulations. More than 15,000 comments were received from workers, family members, employers, academics, and other interested parties. This input ranged from personal accounts, legal reviews, industry and academic studies, surveys, and recommendations for regulatory and statutory changes to address particular areas of concern.

The proposed changes are in response to fifteen years of experience of FMLA administration and the comments submitted by the public regarding the DOL’s administration of FMLA and its effectiveness. In addition, several U.S. Supreme Court and lower court decisions have invalidated portions of FMLA regulations.

The changes proposed by the DOL include:

• Clarifying employee eligibility for FMLA leave regarding a break in service; an employee’s rights to voluntarily settle FMLA claims without court or DOL approval; and allowing for fitness-for-duty certifications certifying an employee’s ability to perform essential duties of his/her job upon return from a leave and where reasonable job safety issues exist.
• Clarifying that time spent performing “light duty” does not count towards an employee’s FMLA leave.
• Modifying the definition of a "serious health condition" to require two or more doctor visits within a 30-day period, or one doctor visit with a regimen of continuing treatment. For chronic conditions, an employee will be required to see his or her physician at least twice a year.
• Streamlining the medical certification process to:
  -Permit employers to return medical certifications for FMLA to employees if incomplete or insufficient and providing employees up to seven days to submit a completed form.
  -Allow employers to directly contact an employee’s health care provider for purposes of clarification of a medical certification form provided HIPAA privacy regulations are met.
  -Allow employers to request recertification of an ongoing condition every six months in conjunction with an absence.
• Increasing FMLA notice requirements for employees.
• Extending the period (from the current two days to a proposed five days) employers have to send out required eligibility and designation notices to employees who request FMLA leave.
• Reaffirming both employee notice rules requiring employees to follow employers’ standard procedures for reporting a need for FMLA leave and existing consequences if an employee fails to follow proper procedures.
• Allowing employees to substitute any form of accrued paid leave offered by employers for unpaid FMLA leave.
• Allowing for denial of “Perfect Attendance” awards for employees who take FMLA leave.

The proposed regulations, however, do not address the minimum amount of unscheduled intermittent leave an employee is permitted to take as FMLA leave. Under current regulations, an employee can take intermittent leave in the smallest increment of time that an employer records time, which could be as little as a minute, thus creating an administrative burden for employers to manage.

The new proposed forms of FMLA leave and the new proposed FMLA regulations will require that employers update their postings and revise their own handbooks and other written FMLA policies to reflect the changes to the FMLA law and the likely changes to the FMLA regulations, which could be finalized later this calendar year.

The DOL invites the public to comment on the Notice of Proposed Rulemaking through the Federal eRulemaking Portal at http://www.regulations.gov until 12:00 midnight April 11, 2008.