Department of Labor Proposes Significant FMLA Changes

The federal Family and Medical Leave Act ("FMLA") presents significant administrative and operational challenges to many employers. For the first time since 1993, the Department of Labor is proposing a series of far-reaching changes to FMLA regulations, several of which could benefit employers and some of which could be more onerous for employers. Among other things, the proposed regulations are expected to:

1. Prohibit employers from charging time spent on "light duty" assignments as FMLA leave time.
2. Allow employers greater opportunity to contact employee medical providers directly, with employee permission, to obtain certain clarifying or authenticating information about the employee's medical condition (rather than having an employer-designated medical provider make such contact).
3. Make clear that employers may require employees taking non-emergency intermittent FMLA leave to follow established call-in procedures for reporting their anticipated absences.
4. Require employees requesting leave for chronic health conditions to verify that they have seen a medical provider at least twice per year.
5. Allow employers some latitude in requiring employees returning from FMLA leave to demonstrate ability to perform their jobs through "fitness-for-duty" evaluations.
6. Allow employers, under certain circumstances, to disqualify employees who take FMLA leave from perfect attendance awards.

Employers had requested a greater minimum increment such as a minimum of one hour or a half day for tracking FMLA leave taken.  However, the proposed regulations are not expected to change the current rule requiring leave to be recorded in the smallest increment of time permitted under the employer's timekeeping system.

The public will have sixty days to comment on the proposed regulations. Modifications are likely to occur in that process, so employers should await final regulations before implementing FMLA policy changes. The Department of Labor is also working on crafting regulations related to the recent legislative change expanding the FMLA to provide leave to care for a relative who has become injured or ill through military service. The Department of Labor hopes to issue final regulations by year end.