FMLA Gets a Makeover
May 23, 2008
Edited by Jeremy Cohen
Good news for employers and employees alike: More workers are now being covered by the Family and Medical Leave Act (FMLA), and both they and their companies may soon have an easier time diciphering the law's provisions.
Typically, the FMLA gives eligible workers up to 12 weeks of unpaid leave during any 12-month period. Qualifying reasons include the treatment of their own serious health condition, caring for a newborn or caring for a sick family member. The law generally covers employers with 50 or more employees. Eligible employees are those who have been employed for at least 12 months total with an employer, and who have worked at least 1,250 hours during the 12-month period immediately preceding the leave.
Back in January, Congress enacted the first significant changes to the law since its inception in 1993. Employees caring for members of the military—those who become ill or injured in the line of duty—are now eligible to take up to 26 weeks of unpaid leave. "Employers who are covered by the FMLA should immediately revise their leave policies and practices to conform to this change in the law," says Amy G. McAndrew, an attorney with Pepper Hamilton LLP. "These employers also should consider posting a short memo, or otherwise letting employees know about the new law."
Just two weeks after the Congressional action, the U.S. Department of Labor published hundreds of pages of proposed changes to the FMLA regulations. "While the proposals do not make any sweeping changes, they may serve to clarify a law that many employers and employees have found complex, and which many human resource professionals have found difficult to administer," says McAndrew.
One of the most significant changes would be to address the controversial Fourth Circuit Court of Appeals decision in Taylor v. Progress Energy. In that decision, the court held that an employee and employer may not independently settle past claims under the FMLA without the approval of the DOL or a court. McAndrew says the proposed regulations reject the Fourth Circuit's decision, explicitly permitting employees and employers to agree voluntarily to the settlement of past claims without having to obtain permission from the DOL or a court.
Other proposed changes assist employers and employees in the day-to-day administration of the FMLA. Some of the most significant proposed changes address the administration of intermittent leave under the FMLA. For example, under the proposed regulations, an employee who takes intermittent leave would be required to make a "reasonable effort" (as opposed to an "attempt," the current requirement) to schedule leave so that it does not unduly disrupt the employer's operations.
Furthermore, the proposed regulations clarify that an employee's health care provider must certify whether intermittent or reduced schedule leave is medically necessary. They would require employees using intermittent leave time to submit recertifications annually, if the condition lasts more than a year, or every six months if the duration of the condition is described as "indefinite," "unknown" or "lifetime."
Without unusual circumstances such as hospitalization, the new regulations require employees using intermittent leave to furnish a fitness-for-duty certificate every 30 days if the employer has reasonable concerns regarding workplace safety.
Lastly, the proposed regulations also make changes to the medical certification process. "Employers would be allowed to directly contact an employee’s health care provider to authenticate and/or clarify a medical certification provided under the FMLA," McAndrew explains. "Under current regulations, the employer is required to use its own health care provider to contact the employee's health care provider, which can result in delays, inefficiencies and expense."
For more information, visit Pepper Hamilton LLP at www.pepperlaw.com.
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